CHAPTER 4.06
VIDEO SERVICE PROVIDED BY STATE FRANCHISE HOLDERS
Section
4.06.010 Purpose and applicability
4.06.030 Franchise fee for state franchise holders
4.06.040 Public, educational, and government channels
4.06.060 Customer service penalties for state franchise holders
4.06.070 Appeal process for customer service penalties
4.06.100 Authority to examine and audit business records
4.06.120 Emergency alert system
4.06.130 Non-discriminatory video service
4.06.010 PURPOSE AND APPLICABILITY.
The purpose of this chapter is to set forth regulations for the provision of video service by state franchise holders, in accordance with the Digital Infrastructure and Video Competition Act, Cal. Public Utilities Code §§ 5800 et seq. (“DIVCA”) and in accordance with Cal. Public Utilities Code §§ 7901 and 7901.1. This chapter shall apply only to video service providers issued a state franchise to serve any area within the City by the Public Utilities Commission (“CPUC”) pursuant to DIVCA.
(Ord. 867, § 2 (part), passed 2-11-2008)
4.06.020 DEFINITIONS.
For the purposes of this chapter, the words set out in this section shall have the following meanings:
CABLE SERVICE. Shall have the meaning given that term by the Cal. Public Utilities Code § 5830(c).
DAYS. Calendar days unless specifically designated to mean otherwise.
ENCROACHMENT. The installation, construction and maintenance of a Network within, upon, over, or under the public right-of-way.
ENCROACHMENT PERMIT. Shall have the meaning given that term by the Cal. Public Utilities Code § 5885(c)(1), which shall include any permit issued by the City pursuant to Title 9, Chapter 9.72 of the Fort Bragg Municipal Code.
FRANCHISE. Shall have the meaning given that term by the Cal. Public Utilities Code § 5830(f).
FRANCHISE FEE. Shall have the meaning given that term by the Cal. Public Utilities Code § 5830(g).
GROSS REVENUES. Shall have the meaning given that term by the Cal. Public Utilities Code § 5860.
HOLDER. Shall have the meaning given that term by the Cal. Public Utilities Code § 5830(i).
INCUMBENT CABLE OPERATOR. Shall have the meaning given that term by the Cal. Public Utilities Code § 5830(j).
LEAD AGENCY. Shall have the meaning given that term by Cal. Public Resources Code § 21067.
LOCAL FRANCHISE. A cable television franchise, permitting the incumbent cable operator to own, operate, and maintain a cable system and provide cable services within the City, issued by the City prior to December 31, 2006.
MATERIAL BREACH. Shall have the meaning given that term by the Cal. Public Utilities Code § 5900(j).
NETWORK. Shall have the meaning given that term by the Cal. Public Utilities Code § 5830(l), which shall include any component of a facility used to provide video service, cable service, voice or data services that is wholly or partly physically located within, upon, over or under a public right-of-way.
PARKWAY. A broad thoroughfare with a dividing strip or side strips planted with grass, trees, etc. including an open landscaped highway.
PUBLIC RIGHT-OF-WAY. Shall have the meaning given that term by the Cal. Public Utilities Code § 5830(o) and, alternatively, any of the following that are controlled, used or dedicated for use by the public and located within the City’s jurisdictional limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, rights-of-way and similar public property within which any state franchise holder may place its network.
PUBLIC UTILITIES CODE. Shall mean the California Public Utilities Code
STATE FRANCHISE. Shall have the meaning given that term by the Cal. Public Utilities Code § 5830(p).
VIDEO SERVICE. Shall have the meaning given that term by the Cal. Public Utilities Code § 5830(s).
(Ord. 867, § 2 (part), passed 2-11-2008; Am. Ord. 870, § 5, passed 8-25-2008)
4.06.030 FRANCHISE FEE FOR STATE FRANCHISE HOLDERS.
Any state franchise holder shall remit to the City a franchise fee in the amount of five percent (5%) of the gross revenues of the state franchise holder in compliance with Cal. Public Utilities Code §§ 5840(q) and 5860.
(Ord. 867, § 2 (part), passed 2-11-2008)
4.06.040 PUBLIC, EDUCATIONAL, AND GOVERNMENT CHANNELS.
A. All unsatisfied obligations, existing on January 1, 2007, to remit any cash payments to the City for the ongoing costs of public, educational, and government (“PEG”) channel facilities or institutional networks contained in a local franchise, shall continue until May 8, 2020 and shall be paid by the incumbent cable operator and any state franchise holders pursuant to Cal. Public Utilities Code § 5870. Such cash payments shall be divided among the incumbent cable operator and all state franchise holders pursuant to Cal. Public Utilities Code § 5870.
B. All obligations, existing on December 31, 2006, to provide and support PEG channel facilities and institutional networks and to provide cable services to community buildings contained in a local franchise, shall continue until May 8, 2020 pursuant to Cal. Public Utilities Code § 5870(k).
C. Commencing on May 9, 2020, any state franchise holder shall remit to the City a fee to support PEG channel facilities in the amount of one percent (1%) of the gross revenues of the state franchise holder in compliance with Cal. Public Utilities Code § 5870. All revenue collected pursuant to this fee shall be deposited in a separate fund and shall only be expended for the purpose of supporting PEG channel facilities.
D. Any state franchise holder shall designate a sufficient amount of capacity on its network to allow the provision of PEG channels in accordance with Cal. Public Utilities Code Section 5870. Any state franchise holder shall have three (3) months from the date the City requests the PEG channels to designate the capacity. The three (3)-month period shall be tolled by any period during which the designation or provision of PEG channel capacity is technically infeasible.
E. This section shall be enforced, and disputes regarding this section shall be resolved, pursuant to Cal. Public Utilities Code § 5870.
(Ord. 867, § 2 (part), passed 2-11-2008)
4.06.050 PAYMENT OF FEES.
A. Any state franchise holder shall pay the franchise fee established in Section 4.06.030 and the PEG channel facilities fee established in § 4.06.040C. on a quarterly basis in a manner consistent with Cal. Public Utilities Code § 5860.
B. Any state franchise holder shall deliver to the City by check, or other means agreeable to the City Manager, a separate payment for the franchise fee established in § 4.06.030 and the PEG channel facilities fee established in § 4.06.040C. not later than forty five (45) days after the end of each calendar quarter.
C. Each payment of the franchise fee established in § 4.06.030 delivered to the City shall be accompanied by a summary report explaining the basis for the calculation of the payment.
D. If any state franchise holder fails to remit the franchise fee established in § 4.06.030, the PEG channel facilities fee established in § 4.06.040C. or any cash payment required by § 4.06.040A. as and when due, the state franchise holder shall remit to the City, in addition to all other amounts owed, a late payment charge at the rate per year equal to the highest prime lending rate during the period of delinquency plus one percent (1%).
(Ord. 867, § 2 (part), passed 2-11-2008)
4.06.060 CUSTOMER SERVICE PENALTIES FOR STATE FRANCHISE HOLDERS.
A. Any state franchise holder shall comply with the customer service provisions set forth in Cal. Public Utilities Code § 5900, which includes any other customer service standards pertaining to the provision of video service established by federal or state law.
B. The City shall impose the following penalties against a state franchise holder for any material breach of the customer service provisions set forth in Cal. Public Utilities Code § 5900:
1. For the first occurrence of a material breach, a fine of five hundred dollars ($500.00) shall be imposed for each day of each material breach, not to exceed one thousand five hundred dollars ($1,500.00) for each occurrence of the material breach.
2. For a second occurrence of a material breach of the same nature as the first material breach that occurs within twelve (12) months, a fine of one thousand dollars ($1,000.00) shall be imposed for each day of each material breach, not to exceed three thousand dollars ($3,000.00) for each occurrence of the material breach.
3. For a third or further occurrence of a material breach of the same nature as the previous material breaches that occurs within twelve (12) months, a fine of two thousand five hundred dollars ($2,500.00) shall be imposed for each day of each material breach, not to exceed seven thousand five hundred dollars ($7,500.00) for each occurrence of the material breach.
C. The City shall provide the state franchise holder with written notice of any alleged material breach of the customer service provisions set forth in Cal. Public Utilities Code § 5900 and shall allow the state franchise holder at least thirty (30) days from receipt of the notice to remedy the specified material breach.
D. A material breach for the purposes of assessing penalties shall be deemed to have occurred for each day within the jurisdiction of the City, following the expiration of the period specified in § 4.06.060C., that any material breach has not been remedied by the state franchise holder, irrespective of the number of customers affected. No monetary penalties shall be assessed for a material breach if it is out of the reasonable control of the state franchise holder.
E. Upon expiration of the period specified in § 4.06.060(C), without remediation of the material breach by the state franchise holder, the City shall submit a written decision to assess penalties to the state franchise holder. The imposition of any penalties may, at the City’s option, be determined by an officer, employee, or agency of the City to which it may delegate these administrative decisions, subject to the state franchise holder’s right to appeal to the City Council. Any decision to assess penalties against a state franchise holder must be in writing and must contain findings supporting the decision.
F. Pursuant to Cal. Public Utilities Code § 5900, any penalty remitted to the City by a state franchise holder for a material breach of the customer service provisions set forth in Cal. Public Utilities Code § 5900 shall be split in half, and the City shall submit one-half of the penalty amount to the Digital Divide Account established by Cal. Public Utilities Code § 280.5.
(Ord. 867, § 2 (part), passed 2-11-2008)
4.06.070 APPEAL PROCESS FOR CUSTOMER SERVICE PENALTIES.
Any state franchise holder may appeal any customer service penalty assessed pursuant to § 4.06.060 according to the following procedure:
A. The state franchise holder shall initiate an appeal pursuant to one of the following:
1. Submit a written request for a meeting with the City within fifteen (15) days from receipt of the written notice specified in § 4.06.060C. to discuss the specified material breach, at which time the state franchise holder shall indicate, in writing, the period of time reasonably required to remedy the material breach. Within three (3) days after this meeting, the City shall state in writing the reasonable period of time the City will allow the state franchise holder to remedy the material breach. During this time period to remedy the material breach, but in no event less than ten (10) days before the final date for correction, the state franchise holder may request additional time to remedy the material breach and the City will grant that request if the City reasonably determines that such additional time is reasonably necessary due to delays beyond the state franchise holder’s control. If the material breach continues for a period of ten (10) days after the deadline for the remediation of the material breach, including any authorized extension of time, a hearing before the City Council will be scheduled by the City with regard to the penalty; or
2. Within ten (10) days of the written decision specified in § 4.06.060E., the state franchise holder shall appeal that decision in a written letter to the City Council. The appeal letter must be accompanied by the fee established by the City Council for processing the appeal. A hearing before the City Council will be scheduled by the City with regard to the penalty.
B. The City will provide to the state franchise holder written notice of the hearing, including the grounds for the proposed action, not less than ten (10) days before the hearing. That written notice will also describe the procedures to be followed by the City Council to determine whether cause exists for the penalty. At a minimum, those procedures will afford the state franchise holder adequate notice and a fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, to question and to cross examine witnesses, and to obtain a transcript of the proceeding at the state franchise holder’s expense.
C. At the hearing, the City Council will hear the state franchise holder, and any other person interested in the matter, and will determine, at that or at any continued hearing, an appropriate course of action for enforcement of the customer service provisions set forth in Cal. Public Utilities Code § 5900. All decisions will be in writing and will include findings of fact. A copy of the decision will be transmitted to the state franchise holder. The decision of the City Council will be final and dispositive. Notwithstanding the foregoing, judicial review of any resulting decision of the City Council may be sought by the state franchise holder and any other interested person in a court of competent jurisdiction pursuant to Cal. Public Utilities Code § 5900.
(Ord. 867, § 2 (part), passed 2-11-2008)
4.06.080 ENCROACHMENT PERMIT.
A. Any state franchise holder shall apply for an encroachment permit to install, construct or maintain a network pursuant to Title 9, Chapter 72 of the Fort Bragg Municipal Code. In addition to the procedures set forth in Title 9, Chapter 9.72 of the Fort Bragg Municipal Code, the following shall apply to any state franchise holder applying for an encroachment permit:
1. Any encroachment permit application submitted by any state franchise holder shall be approved or denied within sixty (60) days of receipt by the City of a completed application. An application for an encroachment permit is complete when the state franchise holder has complied with all statutory requirements, including CEQA, pursuant to Cal. Public Utilities Code § 5885, and has provided the appropriate insurance certificates and proper endorsements.
2. The sixty (60) day time period for approval or denial of an encroachment permit application may be extended if mutually agreed to in a written agreement between the state franchise holder and the City.
3. Any denial of an encroachment permit application submitted to any state franchise holder by the City shall be written and shall include a detailed explanation of the reason for the denial.
4. Any state franchise holder may appeal a denial of an encroachment permit application to the City Council pursuant to Chapter 9.72, Section 9.72.160 of the Fort Bragg Municipal Code.
B. All state franchise holders issued an encroachment permit to install, construct or maintain a network shall comply with Title 9, Chapter 9.72 of the Fort Bragg Municipal Code. In addition, all state franchise holders issued an encroachment permit shall comply with the following:
1. Any state franchise holder issued an encroachment permit for the installation, construction or maintenance of any network by the City shall release and indemnify the City according to the following, to the extent permitted by law:
a. The state franchise holder shall release the City, its trustees, elected and appointed officers, agents, and employees from and against any and all liability and responsibility in or arising out of the installation, construction and maintenance of any network by the state franchise holder or its agents, independent contractors or employees. The state franchise holder shall not sue or seek any money or damages from the City, its trustees, elected and appointed officers, agents, and employees in connection with the above mentioned matters; and
b. The state franchise holder shall defend, indemnify and hold harmless the City, its trustees, elected and appointed officers, agents, and employees from and against any and all claims, demands, or causes of action of any kind or nature, and the resulting losses, costs, expenses, reasonable attorneys§ fees, liabilities, damages, orders, judgments, or decrees sustained by the City or any third party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the state franchise holder, or its agents, independent contractors or employees related to or in any way arising out of the installation, construction and maintenance of any network except those claims which arise out of the gross negligence or willful misconduct of the City.
2. Any state franchise holder (or those acting on its behalf) issued an encroachment permit shall not commence installation, construction and maintenance of any network without first obtaining insurance according to the following:
a. No encroachment permit shall be issued to any state franchise holder pursuant to this chapter until the state franchise holder for such encroachment permit has filed with the City Clerk evidence of insurance and all applicable endorsements. Certificates of insurance and endorsements must be in a form acceptable to the City.
b. The required insurance must be obtained and maintained for the entire period the state franchise holder has any network within the City. If any state franchise holder, its contractors, or subcontractors do not have the required insurance, the City may order such state franchise holders (or those acting on its behalf) to stop installation, construction and maintenance of any network until the insurance is obtained and approved. If for any reason any state franchise holder fails to obtain or keep any of the insurance in force, the City may (but is not required to) obtain that insurance. In that event, the state franchise holder shall promptly reimburse the City its premium costs, plus one percent (1%) monthly interest thereon until paid.
c. Each state franchise holder’s insurance coverage shall be primary insurance. Any insurance or self insurance maintained by the City shall be excess of the state franchise holder’s insurance and shall not contribute to a loss under the state franchise holder’s coverage.
d. The required insurance must be obtained from companies that are authorized to transact business in California and have a rating of A or better in Best’s Insurance Guide.
e. Any deductibles or self-insured retentions are subject to the City’s prior approval, which approval will not be unreasonably withheld.
f. Any state franchise holder (and those acting on its behalf to install, construct or maintain any network) shall maintain the following minimum insurance:
i. Workers’ compensation or employer’s liability insurance in conformance with the laws of the State of California. Any policy of workers’ compensation or employer’s liability insurance must include a waiver of subrogation rights against the City, its officers, officials, employees, agents and representatives.
ii. The state franchise holder’s vehicles, including owned, leased, or hired vehicles, must be each be covered with automobile liability insurance in the minimum amount of two million dollars ($2,000,000) combined single limit per accident for bodily injury and property damage.
iii. The state franchise holder must obtain and maintain comprehensive or commercial general liability insurance coverage in the aggregate annual amount of three million dollars ($3,000,000) combined single limit, including bodily injury, personal injury, and broad form property damage. This insurance coverage must include, without limitation, contractual liability coverage adequate to meet the state franchise holders indemnification obligations.
g. The City is to be named as an additional named insured on the automobile liability and the comprehensive or commercial general liability insurance policies at the state franchise holder’s expense, if any. Evidence that the City has been so named must be in the form of a copy of the policy endorsement submitted with the certificate. A statement on the certificate that the City is an additional named insured is not adequate. Each state franchise holder shall also furnish the City Clerk proof, in form acceptable to the City Clerk, that the state franchise holder has in force and effect workers’ compensation insurance as required by the state law of California.
h. All insurance policies required by this section shall contain the following clause: “This insurance shall not be canceled, limited, or not renewed until thirty (30) days written notice of such proposed cancellation, limitation or non-renewal has been given to the City of Fort Bragg.”
3. All state franchise holders shall comply with all City excavation policies and procedures.
4. An encroachment permit must be obtained for each increment of installation, construction and/or maintenance of the network, and inspection shall be requested at least twenty-four (24) hours prior to any excavation. All inspection costs will be charged directly to the state franchise holder. The City shall include all inspection costs with permit fees charged to the state franchise holder.
5. Detailed plans for all network installation, construction and maintenance shall be submitted to and approved by the appropriate city department prior to issuance of any encroachment permit. Complete detailed plans shall clearly indicate the horizontal alignment of the network. Plans must clearly show streets, property lines, curbs, centerlines, and existing utilities.
6. Above-ground power pedestals shall be clearly delineated on the plans at the time they are submitted for review. Review and permitting for power pedestals shall be conducted by the appropriate City department. All power pedestals and related connections shall comply with the City of Fort Bragg Municipal Code and all other applicable laws and regulations.
C. In the event that any part of this section conflicts in any way with Title 9, Chapter 9.72 of the Fort Bragg Municipal Code, this section shall apply.
(Ord. 867, § 2 (part), passed 2-11-2008)
4.06.090 PUBLIC RIGHT-OF-WAY.
Any state franchise holder applying for and issued an encroachment permit shall install, construct and/or maintain a network in accordance with Title 9, Chapter 9.72 of the Fort Bragg Municipal Code. In addition to the requirements set forth in Title 9, Chapter 9.72 of the Fort Bragg Municipal Code, the following shall apply to any state franchise holder applying for and issued an encroachment permit:
A. All state franchise holders must adhere to all building and zoning codes, as may be amended, and must obtain all necessary permits, which permits will be processed in a timely manner and will not be unreasonably delayed or denied. All state franchise holders shall make every reasonable effort to arrange its network in such a manner as to minimize interference with the use of the public right-of-way by any person. In the event of such interference, the City may require the removal or relocation of the state franchise holder’s network from the property in question. The state franchise holder shall give at least forty eight (48) hours advance notice to all property owners prior to installing any additional above-ground or underground structures upon easements located on private property. The City shall not modify its construction requirements subsequent to the completion of construction so as to require reconstruction or retrofit, unless the health, welfare or safety of the public so requires.
B. The City Manager or designee shall ensure that all state franchise holders comply with all local design, construction, maintenance and safety standards that are contained within, or are related to, an encroachment permit that authorizes the installation, construction and maintenance of a network within the public rights-of-way.
C. The City Manager or designee shall coordinate the installation, construction and maintenance of networks by state franchise holders in order to minimize the number of excavations in the public rights-of-way. In this regard, based upon projected plans for street construction or renovation projects, the City Manager or designee is authorized to establish on a quarterly basis one or more construction time periods or “windows” for the installation of networks within the public rights-of-way. Any state franchise holder that submits an application for an encroachment permit to install, construct or maintain a network after a predetermined date may be required to delay such installation, construction or maintenance until the next quarterly “window” that is established by the City.
D. The City Engineer and/or Director of Public Works are authorized to approve the location and method of construction of all networks, to the extent that such authorization is not otherwise preempted by state or federal laws or regulations. Preference shall be given to installation of new poles and/or other video service infrastructure in alleys where alleys are available, or are planned to be made available, to reasonably accommodate such poles and/or other infrastructure.
E. All disturbance or damage to public rights-of-way and improvements located within the public rights-of-way caused by any state franchise holder or its contractors or subcontractors during installation, construction, or maintenance of any network shall be restored, repaired, or reconstructed at the sole expense of the state franchise holder, within the time frame specified by the City, and in accordance with the City’s underground construction requirements set forth in § 4.06.090 O.
F. Upon the failure, refusal or neglect of any state franchise holder to undertake or complete any phase of installation, construction or maintenance, including repair or relocation, of any network, thereby creating an adverse impact upon the public health, welfare or safety, the City may (but is not required to) cause that work to be completed, in whole or in part, and upon so doing shall recover such costs pursuant to Title 9, Chapter 9.72 of the Fort Bragg Municipal Code or shall submit to the state franchise holder an itemized statement of costs, which the state franchise holder shall, within thirty (30) days of billing, pay to the City the actual costs incurred. The state franchise holder shall be given reasonable advance notice of the City’s intent to exercise this power and fifteen (15) days to undertake or complete the phase of installation, construction or maintenance, including repair or relocation, of the network, unless a different period is specified in the City’s underground construction requirements set forth in Section 4.06.090 O.
G. If any public right-of-way or portion thereof used by any state franchise holder is vacated by the City, or its use is discontinued by the City, then, upon reasonable notice, the state franchise holder may be required to remove or relocate its network, unless otherwise specifically authorized, or unless easements for the network have previously been reserved.
H. The City may, upon written application by any state franchise holder, approve the abandonment by the state franchise holder of any network, under such terms and conditions as the City may approve. Upon City approved abandonment of any network, the state franchise holder must cause to be executed, acknowledged, and delivered to the City such instruments as the City may prescribe and approve in order to transfer and convey ownership of that network to the City.
I. If any state franchise holder’s network is deactivated for a continuous period of thirty (30) days, (except for reasons beyond the state franchise holder’s control), without prior written notice to and approval by the City, the state franchise holder must, at the City’s option and demand, and at the sole expense of the state franchise holder, remove all of the state franchise holder’s property from any public right-of-way and restore, repair, or reconstruct that area of the public right-of-way within a reasonable period of time specified by the City, but not less than one-hundred-eighty (180) days. If any state franchise holder’s state franchise is revoked or otherwise terminated the state franchise holder must, at the City’s option and demand, and at the sole expense of the state franchise holder, remove all of the state franchise holder’s property from any public right-of-way and restore, repair, or reconstruct that area of the public right-of-way within a reasonable period of time specified by the City, but not less than one hundred eighty (180) days.
J. If the City determines that the removal or relocation of any network of any state franchise holder is necessary because of a conflict with a public project, the state franchise holder, upon reasonable notice, must remove or relocate, at the expense of the state franchise holder, its network in order to facilitate that public project. For purposes of this section, the word “project” means any change of grade, alignment or width of any public street, way, alley or place, including but not limited to, the construction of any subway or viaduct, that the City may initiate, either by or through itself or any redevelopment agency, community facility district, assessment district, underground district, reimbursement agreement or generally applicable impact fee program. In the event such removal or relocation is required, the state franchise holder shall commence physical fieldwork on the removal or relocation on or before one hundred twenty (120) days after written notice of such requirement is provided by the City Manager. If, despite its reasonable efforts, the state franchise holder is unable to commence removal or relocation within such period, the state franchise holder shall provide the City Manager with written notice explaining in detail the reasons for the delay and a date upon which removal or relocation is expected to commence. The state franchise holder shall diligently proceed and promptly complete all such removal or relocation after it is commenced.
K. All state franchise holders are prohibited from erecting any new pole on or along any public right-of-way where there is an existing aerial utility system, unless otherwise directed or permitted by a state or federal regulatory agency(ies) with jurisdiction over placement of such pole(s). If additional poles in an existing aerial route are required, the state franchise holder must negotiate with the appropriate public utility, including the City if applicable, for their installation. Any such installation requires the advance written approval of the City. The City’s approval of the installation of new poles may be conditioned on placement of poles in alleys where alleys are available, or are planned to be made available, to reasonably accommodate such poles.
L. Subject to applicable federal and state law, the grantee must negotiate the lease of pole space and facilities from the existing pole owners for all aerial construction, under mutually acceptable terms and conditions. No pole line may be extended solely for the purpose of accommodating the state franchise holder’s network. Line extensions beyond any existing pole line must be underground where practical.
M. All cables must be installed underground at the state franchise holder’s cost where all existing utilities are already underground or all new utilities are being installed underground in the area. Previously installed aerial cable will be installed underground at the state franchise holder’s pro rata cost in concert with other utilities when aerial facilities are required to be placed underground. At no time shall the network be only aerial facility in any given area. At no time shall any state franchise holder place cable underground without appropriate conduit.
N. Where the network is installed underground, line extenders, amplifiers, taps, power supplies, traps and related electronic equipment and components may be placed in appropriate housings above the surface of the ground to the extent that the method employed is compliant with any and all applicable City, state, federal or other regulations, and consistent with any other generally applicable guidelines, policies or procedures which may from time to time be adopted by the City or other applicable government agency. The state franchise holder shall provide a procedure for undergrounding taps and pedestals, the cost of which subscribers shall bear, and relocating the taps and pedestals within the technical constraints of the network.
O. Any state franchise holder shall file with the City “as built” drawings of the entire network, excluding technical specifications. Within thirty (30) days after completion of any material modification of the network, the state franchise holder shall file with the City “as built” drawings, excluding technical specifications, of the modified network. The City may require that the “as built” drawings be submitted in an electronic format specified by the City.
P. The City’s underground construction requirements are set forth below. Where field conditions are such that these underground construction requirements are conflicting or apparently prevent progress, all work shall cease until modified specifications are approved in writing by the City Engineer or Director of Public Works.
1. All network installations in parkways shall be according to the following:
a. Network installations in parkways shall not be installed below grade in areas that have, or are planned to have landscaped planter strips or pathways, trees, plants, shrubs or other forms of landscaping, or underground sprinkler systems.
b. Network installations in areas where parkways have been, or are planned to be, constructed shall be routed to alleys where alleys are available, or are planned to be made available, to reasonably accommodate such installations.
c. Where network installations in parkways cannot feasibly be installed above grade, or routed to alleys, the following construction standards shall apply.
i. All conduit installations in parkways shall have a minimum cover of eighteen (18) inches below the finish grade.
ii. All existing improvement in parkways, including landscaping and sprinklers, shall be protected from damage, or, if damaged, restored to pre-construction conditions. All repairs and replacements shall be made in kind.
iii. All service boxes and vaults must be set to finish grade on six (6) inches of one inch crushed rock.
iv. No access to new service boxes or vaults may be located within the sidewalk, wheelchair ramps, or drive apron areas of the public rights-of-way, unless authorized by the City Engineer or Director of Public Works.
2. All new network installations shall occur in alleys where alleys are available, or are planned to be made available, to reasonably accommodate such installations. Where alleys are not available or are not planned to be made available to accommodate network installations, all network installations in roadways shall be according to the following:
a. Conduit may be installed at locations shown on plans submitted by any state franchise holder after approved by the City Engineer or Director of Public Works. If a location is available, the preferred alignment is two (2) feet from the outer edge of an existing gutter. Where it cannot be located on the preferred alignment, the location must be approved by the City Engineer or Director of Public Works. Removal and replacement of all damaged pavement between the trench and the edge of existing roadway pavement is required on all streets. The edge of the trench must be a minimum of one (1) foot from the edge of the gutter. Exceptions to this requirement are only permitted upon approval by the City Engineer or Director of Public Works.
b. Concrete pavement serving as bus pads, spandrels, cross gutters, or local depressions may not be cut. At these locations, the conduit must be bored or jacked.
c. It is mandatory to maintain a straight alignment. Routing of conduit at bus pads, and any other protrusions beyond the gutter edge, is only permitted upon approval by the City Engineer or Director of Public Works. Locations directly above or in conflict with existing utilities are not permitted, unless approved by an agreement with the affected utility.
d. Open cut transverse trenches are not allowed within public right-of-ways, except at intersections, unless otherwise provided. To serve customers on the other side of a public right-of-way, a parallel line on the opposite side of the public right-of-way must be installed. An alternative to this procedure is mid block crossings installed by jacking or boring conduit under the public right-of-way. If the conduit is to be jacked under the public right-of-way, the state franchise holder shall abide by existing City standards as directed by the City Engineer or Director of Public Works:
i. Crossings must be at least one hundred fifty (150) feet apart.
ii. No jacking or boring operations are permitted without prior written approval from the City.
e. Conduit must be installed at a consistent depth throughout a block with a minimum cover (below the established edge of the gutter) of thirty (30) inches in all public rights-of-way.
3. All above-ground service box or vault portions of network installations shall be according to the following:
a. Above-ground service boxes or vaults are not permitted in the public rights-of-way without prior approval by the City Engineer or Director of Public Works. Consideration shall be given to industry technical standards, the safety and aesthetics of the placement, and the cost of below ground alternatives. The state franchise holder shall flush mount all portions of the network where current technology enables the state franchise holder to do so. When it is not possible to underground a facility entirely, the state franchise holder shall evaluate options for placing as much of the network below ground as possible.
b. Above-ground service boxes or vaults may not be installed without the prior approval of the City Engineer or Director of Public Works, which approval shall not be unreasonably withheld. If existing landscaping and irrigation are disturbed during the construction process, landscaping and irrigation requirements may be imposed by the appropriate City department. The state franchise holder shall coordinate the siting and choice of pedestal materials with the appropriate City department(s) and with residents adjacent to the public right-of-way involved in the proposed installation of above-ground service boxes and other portions of the network.
c. Above-ground facilities shall be constructed so as to connect and lock to some form of concrete footing, except if the above-ground facility is manufactured pre-formed vault that does not require a concrete footing.
d. All state franchise holders shall minimize the negative impacts of above-ground facilities on aesthetics, public convenience, and public safety to the extent reasonably feasible, through such means as creative siting and landscaping, placement of facilities on private property, and partial undergrounding.
e. Above-ground service boxes or vaults must be properly maintained for safety, public convenience, and aesthetic reasons in accordance with the following procedures:
i. Safety repairs, including graffiti removal, must be completed within twenty-four (24) hours after discovery of the need for such repairs by the state franchise holder’s personnel or notification from the City Engineer or Director of Public Works or other designated representative of the City.
ii. All state franchise holders shall provide routine maintenance (e.g. painting, leveling, service box replacement, and fastening to base) within ten (10) working days after the discovery of the need for such maintenance by the state franchise holder’s personnel or notification from a resident, the City Engineer or Director of Public Works, or other designated representative of the City.
iii. All state franchise holders must replace above-ground service boxes or vaults if routine or emergency maintenance is not sufficient to return the facility to a safe and aesthetically acceptable condition as determined by the City Engineer or Director of Public Works.
iv. All state franchise holders must patrol all areas within the City having above-ground service boxes or vaults on a regular basis, at intervals not in excess of three (3) months, to inspect for damage and to determine the need for any required maintenance.
f. Based on advances in technology related to pedestal housings, the City and any state franchise holder shall meet periodically to discuss potential locations where above-ground service boxes or vaults can be eliminated, or converted to flush mounted enclosures, without compromising the technical operation, reliability, and economic viability of the network. Any state franchise holder shall place existing or proposed above-ground facilities below ground, as may be required of all other similarly situated occupants of the City’s public right-of-way.
4. Prior to any network installation, construction and maintenance, any state franchise shall comply with the following:
a. A meeting shall be scheduled prior to the start of any network installation, construction and maintenance at each permitted location as determined by the City Inspector. Representatives of the state franchise holder, including its contractors and subcontractors, and of the appropriate City department shall be included in these meetings. The state franchise holder shall call for inspection at least twenty-four (24) hours before starting any network installation, construction or maintenance.
b. All state franchise holders shall verify the location of all existing utilities to ensure that they are not damaged during network installation, construction or maintenance. Telephonic notices shall be provided to the Underground Service Alert (“USA”) at least two (2) business days prior to starting any underground network installation, construction and maintenance by any state franchise holder. The state franchise holder shall be a member of USA. The state franchise holder shall have an approved encroachment permit from the appropriate City department before contacting USA. The state franchise holder shall be solely responsible for the replacement and repair of any utilities that are damaged by the state franchise holder or its agents during network installation, construction or maintenance activities.
c. All utility services must be marked prior to excavation using chalk based paint (“AERVOE” brand or equivalent) with a visibility life not to exceed three (3) weeks.
d. Affected residents must be notified by the state franchise holder in writing not less than ninety six (96) hours prior to excavation in the public rights-of-way adjacent to their properties. Prior approval by the City Inspector of this written notice shall be obtained by the state franchise holder. This written notice requirement does not apply in the case of emergencies.
5. Any network installation, construction and maintenance shall comply with the following:
a. Compliance is required at all times with all applicable portions of (1) the Fort Bragg Municipal Code, and (2) the current version of California Department of Transportation “Standard Specifications”, including any supplements thereto.
b. Unless otherwise approved in advance by the City Engineer or Director of Public Works, no excavations may be made by any state franchise holder anywhere in the City between November 15 and January 3 of each year within public rights-of-way.
c. Open trench protection, and noise and dust curtailment methods, acceptable to the City Inspector, must be provided.
d. Pavement cuts and restoration must conform to City of Fort Bragg standards for asphalt and concrete pavement restoration.
e. All trenching activity that is commenced each day in any public right-of-way must be backfilled to a depth specified by the City Inspector at the end of the day; final resurfacing shall be completed on all public rights-of-way as soon as such resurfacing can be feasibly completed, taking into account weather conditions and/or availability of resurfacing material. Final clean up of the public right-of-way shall be completed within five (5) days following resurfacing. Final clean up of vault installations and other work behind the curb in the public right-of-way shall be completed within ten (10) days following resurfacing.
f. Any state franchise holder, or its contractors or subcontractors, must designate a project superintendent to handle field operations.
g. If utility services must be exposed, the trench must be hand excavated to the service line after saw cutting pavement, or, in the alternative, a vacuum truck may be used subject to approval by the appropriate authorizing department.
h. Residents shall be notified by the state franchise holder immediately of any damage affecting their property, and repairs must be promptly made.
i. Any state franchise holder shall participate in any meeting convened by the City for the purpose of identifying, scheduling and coordinating network installation, construction and maintenance.
Q. In the event that any part of this § 4.06.090 conflicts in any way with Title 9, Chapter 9.72 of the Fort Bragg Municipal Code, this section shall apply. In the event that any part(s) of this § 4.06.090 conflicts with Cal. Public Utilities Code § 7901 or § 7901.1, or any other provision or regulation of state or federal law regulating the installation of video service infrastructure facilities within a public right-of-way, such conflicting part(s) shall not apply.
(Ord. 867, § 2 (part), passed 2-11-2008)
4.06.100 AUTHORITY TO EXAMINE AND AUDIT BUSINESS RECORDS.
A. The City may examine and audit once per year the business records of any state franchise holder relating to gross revenues in a manner consistent with Cal. Public Utilities Code § 5860.
B. All state franchise holders shall keep and maintain all business records reflecting any gross revenues, regardless of change in ownership, for at least four (4) years after those gross revenues are recognized by the state franchise holder on its books and records pursuant to Cal. Public Utilities Code § 5860.
C. If the state franchise holder has underpaid the franchise fee established by § 4.06.030 by more than five percent (5%), the state franchise holder shall pay the reasonable and actual costs of the examination and audit, in addition to any other sums found to be owed or owing as a result of such examination and audit. If the state franchise holder has not underpaid the franchise fee established in § 4.06.030, the City shall pay the reasonable and actual costs of the examination and audit. If the state franchise holder, however, has underpaid the franchise fee established by § 4.06.030 by five percent (5%) or less, the state franchise holder and the City shall each bear their own costs of the examination and audit.
(Ord. 867, § 2 (part), passed 2-11-2008)
4.06.110 ENVIRONMENTAL REVIEW.
The City shall serve as the lead agency for any environmental review under DIVCA. The City may impose conditions to mitigate environmental impacts of any state franchise holder’s use of the public rights-of-way that may be required pursuant to the California Environmental Quality Act, California Public Resources Code §§ 21000 et seq. (“CEQA”). The state franchise holder shall be responsible for all costs of preparing and processing the CEQA application.
(Ord. 867, § 2 (part), passed 2-11-2008)
4.06.120 EMERGENCY ALERT SYSTEM.
A. All state franchise holders shall comply with the Emergency Alert System requirements of the Federal Communications Commission in order that emergency messages may be distributed over all state franchise holders§ networks.
B. All provisions contained in a local franchise existing within the City on December 31, 2006 authorizing the City’s public safety personnel and designated public officials to provide local emergency notifications shall remain in effect and shall apply to any state franchise holders until May 8, 2020.
(Ord. 867, § 2 (part), passed 2-11-2008)
4.06.130 NON-DISCRIMINATORY VIDEO SERVICE.
Any state franchise holder is prohibited from discriminating against or denying access to service to any group of potential residential subscribers within the City because of the income of the residents in the local area in which the group resides. This requirement may be satisfied pursuant to Cal. Public Utilities Code § 5890. The City may bring complaints to the CPUC that a state franchise holder is not offering video services as required by Public Utilities Code Section 5890.
(Ord. 867, § 2 (part), passed 2-11-2008)