Chapter 4.12
GENERAL REQUIREMENTS
Sections:
4.12.020 Purpose of Division 2 Provisions.
4.12.030 Continuation of Provisions.
4.12.040 Provisions Incorporated by Reference.
4.12.060 Statutory Provisions Applicable.
4.12.080 Rights Reserved to the City.
4.12.090 Terms and Conditions Generally.
4.12.100 Franchise Grant Not Exclusive.
4.12.110 Acceptance of Franchise.
4.12.120 Term of the Franchise.
4.12.130 Insurance and Indemnification Requirements.
4.12.140 Performance Bond Requirements.
4.12.160 Grant and Forfeiture Conditions.
4.12.165 Costs of Technical Assistance.
4.12.190 Liability and Indemnification.
4.12.200 Additional Terms and Conditions.
4.12.210 Permit Required for Certain Work.
4.12.230 Purchase of Franchise Property by City.
4.12.240 Fair Employment Practices—Statutory Provisions Incorporated by Reference.
4.12.260 Undergrounding of Cable.
4.12.010 Title for Citation.
The ordinance codified in Division 2 shall be known and may be cited as the “Master Cable Television System Franchise Ordinance” or “Master CATV Ordinance.” (Ord. 89-28, 1/23/90)
4.12.020 Purpose of Division 2 Provisions.
It is the purpose of the ordinance codified in this Division 2 to standardize practices in the cable television industry, to provide for the unified administration of cable television franchises, to regulate rates to the extent allowable by federal, state and local laws when necessary for the public good, and to regulate the operation of franchises for the purpose of protecting and promoting the public health, safety and welfare in the interests of the subscriber, franchisee, and the public. (Ord. 89-28, 1/23/90)
4.12.030 Continuation of Provisions.
The provisions of this Division 2, insofar as they are substantially the same as existing ordinance provisions relating to the same subject matter, shall be construed as restatements and continuations thereof and not as new enactments. (Ord. 89-28, 1/23/90)
4.12.040 Provisions Incorporated by Reference.
In addition to the terms and conditions set out in this Division 2, the franchise is granted under the same terms and conditions contained in Division 1 of this Title, as if they were contained in this Division 2. In the event the terms and conditions hereof conflict with the terms and conditions of Division 2 of this title, the terms and conditions hereof shall control. (Ord. 89-28, 1/23/90)
4.12.060 Statutory Provisions Applicable.
All franchises for a cable television system shall be granted pursuant to Section 53066 of the Government Code of the state of California. (Ord. 89-28, 1/23/90)
4.12.080 Rights Reserved to the City.
A. The rights reserved to the City under this Division 2 are in addition to all other rights of the City, whether reserved by this Division 2 or authorized by law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the City. Franchisee, by acceptance of the franchise, agrees to be bound thereby and to comply with any action or requirement of the City in its exercise of any such right or power.
B. City shall have the right to waive any provision of the franchise, except those required by federal or state regulation, if the Director determines:
1. That it is in the public interest to do so; or
2. That the enforcement of such provision will impose an undue hardship on the franchisee or the subscribers.
C. The City shall have the power and right at all times for the duration of the franchise to require franchisee to conform to rules and regulations governing the operation of cable television systems now or hereafter adopted by the City Council. (Ord. 89-28, 1/23/90)
4.12.090 Terms and Conditions Generally.
Every franchise granted by the City after the effective date of this ordinance, to construct from time to time and, for the period covered by the franchise, to maintain and operate a cable television and to maintain, operate, renew, repair and remove lines and cables for the transmission of television and radio signals, together with all appurtenances and service connections necessary or convenient for the provision of a cable television system in, under, along or across any and all service areas, highways, public properties and public easements, except as otherwise provided in the ordinance granting the franchise, shall be granted upon and be subject to the rules, regulations, restrictions and terms and conditions of this Division 2, and the rules, regulations, restrictions, terms and conditions set forth in the ordinance granting the franchise. (Ord. 89-28, 1/23/90)
4.12.100 Franchise Grant Not Exclusive.
The granting of the franchise shall not be construed to prevent the City from granting any identical or similar franchise to any person other than the franchisee. (Ord. 89-28, 1/23/90)
4.12.110 Acceptance of Franchise.
The franchisee shall, within 30 days after the passage of the ordinance granting the franchise, file with the City, an express and unconditional written acceptance of the terms and conditions of said ordinance. (Ord. 89-28, 1/23/90)
4.12.120 Term of the Franchise.
Unless the ordinance granting the franchise provides otherwise, the term of the franchise shall be 15 years. (Ord. 89-28, 1/23/90)
4.12.130 Insurance and Indemnification Requirements.
A. 1. The franchisee shall, at its sole expense, indemnify, defend and save harmless the City, its agents, officers and employees from and against any and all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including but not limited to, bodily injury, death, personal injury, or property damage, including property of the franchisee, arising from or connected with either directly or indirectly, franchisee’s activities, operations or services hereunder, including any Workers’ Compensation suits, liability or expense, arising from or connected with services performed on behalf of franchisee by any person pursuant to this franchise.
2. Nothing herein shall be deemed to prevent the parties indemnified and held harmless from participating in the defense of any litigation by their own counsel at the franchisee’s sole expense. Such participation shall not under any circumstances relieve the franchisee from its duty of defense against liability or of paying any judgment entered against such company.
B. Without limiting franchisee’s indemnification of City, franchisee shall provide and maintain at its own expense during the term of the franchise, the following programs of insurance covering its operations hereunder such insurance shall be provided by insurer(s) satisfactory to Director and satisfactory evidence of such programs shall be delivered to the City, on or before the effective date of the franchise. Insurance policies and certificates evidencing coverage shall name the City, its officers, agents, and employees as additional insureds in respect to franchisee’s operations under the franchise. Such evidence shall specifically identify the franchise and shall contain express conditions that City is to be given written notice by registered mail at least 60 days in advance of any modification or termination of any program of insurance:
1. Liability. Such insurance shall be primary to and not contributing with any other insurance maintained by City, shall name the City, its officers, agents, and employees as additional insureds, and shall include, but not be limited to:
a. Comprehensive General Liability Insurance endorsed for Premises-Operations, Products/ Completed Operations, Contractual, Broad Form Property Damage and Personal Injury with a combined single limit of not less than $1,000,000.00 per occurrence. If the above insurance is written on a Claims Made Form, such insurance shall be endorsed to provide an extended reporting period of not less than five years following termination of the policy.
b. Comprehensive Auto Liability Insurance endorsed for all owned, non-owned, and hired vehicles with a combined single limit of at least $1,000,000.00 per occurrence.
c. Said amounts of coverage shall be subject to review and adjustment by the City, at City’s sole option, at any time during the term of the franchise. In the event of such adjustment, franchisee agrees to provide such amounts as are determined by City, within 30 days after written notice to do so from the City.
2. Workers’ Compensation. A program of Workers’ Compensation Insurance in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employers Liability Insurance with a $150,000.00 limit, covering all persons providing services on behalf of franchisee and all risks to such persons under the franchise. Franchisee may provide, if applicable, a certificate of consent to self-insure, issued by the Director of Industrial Relations of the state of California. Should franchisee utilize the self-insurance provision of this section, and franchisee’s certification of consent to self-insure expire or be revoked, franchisee shall be required to provide a program of Worker’s Compensation Insurance prior to or upon said expiration or revocation.
C. Franchisee shall furnish the Director, prior to commencement of any franchise operations, either certified copies of said policies required by subsection B of this section, or a certificate of insurance for each of the required policies executed by the company issuing the policy, certifying that the policy is in force.
D. No franchise operations shall commence until franchisee has complied with aforementioned provisions of this section, and any such operations shall be suspended during any period that franchisee fails to maintain said policies in full force and effect.
E. It shall be the franchisee’s obligation to provide evidence of current insurance policies. (Ord. 89-28, 1/23/90)
4.12.140 Performance Bond Requirements.
A. On or before the effective date of the ordinance granting the franchise, franchisee shall furnish the Director with a bond, payable to the City, in a form and executed by a corporate surety acceptable to City and licensed to transact business as a surety in the State of California. Such a bond shall be maintained in full force and effect at all times during the term of the franchise and shall be in favor of the City in the penal sum of $50,000.00, or such other sum as may be specifically provided for in the ordinance granting the franchise. Said bond to be conditioned upon faithful performance by franchisee of the terms and conditions of the franchise and shall provide that, in case of any breach of condition of the bond, the whole amount of the penal sum shall be deemed to be liquidated damages and shall be payable to the City by the principal and sureties of the bond. If said bond is not filed as aforesaid, the award of the franchise may be set aside and the ordinance granting the franchise repealed and any money paid in consideration for said award of franchise shall be deemed forfeited. The performance bond may be required in addition to a letter of credit or establishment of a security fund. The rights reserved with respect to said performance bond are in addition to all other rights of the City.
B. The amounts of said bond shall be subject to review and adjustment by the City, at City’s sole discretion, at any time during the term of the franchise. In the event of such adjustment, franchisee agrees to renew said bond, in an amount as determined by the City, with sureties to be approved by the City, within 30 days after written notice to do so from the City.
C. Said performance bond shall continue to exist for one year following the Director’s approval of any sale, transfer, assignment or other change of ownership of the franchise, or of the expiration or termination of the franchise, only for the purpose of assuring franchisee’s faithful performance under the terms and conditions of the franchise prior to the date of approval of said change of ownership, or of expiration or termination. The Director may release said bond prior to the end of the one-year period upon satisfaction by franchisee of all said obligations under the franchise.
D. No franchise operations shall commence until franchisee has complied with the aforementioned provisions of this section, and any such operations shall be suspended during any period that franchisee fails to maintain said bond in full force and effect. (Ord. 89-28, 1/23/90)
4.12.160 Grant and Forfeiture Conditions.
A. Any franchise is granted on the conditions and shall be held and enjoyed upon each and every condition contained in the ordinance granting the franchise and each and every condition contained in this Division 2, and shall be strictly construed against the franchisee.
B. In addition to all other rights and powers retained by the City under this Division or otherwise, the City reserves the right to suspend or revoke and terminate a franchise and all rights and privileges of a franchisee in the event of a material breach of its terms and conditions. In interpreting this section, material provisions shall include all labeled as such and all others, which, under all the facts and circumstances indicated, are a significant provision of the franchise agreement. A material breach by franchisee shall include but shall not be limited to the following:
1. Violation of any material provision of the franchise or any material rule, order, regulation or determination of the City made pursuant to the franchise;
2. Attempt to evade any material provision of the franchise or practice any fraud or deceit upon the City or its subscribers or customers;
3. Failure to begin or complete system construction, reconstruction or system extensions as provided under the franchise;
4. Failure to provide the types of facilities, equipment or services promised;
5. Material misrepresentation of fact in the application for or negotiation of the franchise.
C. The Revenue Collector, prior to any suspension or revocation and determination of the franchise, shall give to the franchisee not less than ten days’ notice in writing of any default thereunder. If the franchisee does not within the noticed period begin the work of compliance or, after such a beginning does not prosecute the work with due diligence to completion, the City Council shall hold a hearing at which the franchisee shall have the right to appear and be heard. Notice of said hearing shall be given to franchisee not less than ten days before said hearing.
D. Upon the conclusion of the hearing, the City Council may determine whether such conditions are material and essential to the franchise and whether the franchisee is in default with respect thereto and may declare the franchise suspended or revoked and terminated. No revocation and termination shall become effective less than 30 days after the City Council’s decision to revoke and terminate; and no lapse of time, expenditure or any other thing shall be deemed to give the franchisee any vested right or interest in the continuation of the franchise granted. (Ord. 89-28, 1/23/90)
4.12.165 Costs of Technical Assistance.
Franchisee shall pay the costs incurred by the City for any technical assistance deemed necessary by the City for obtaining independent verification of technical compliance with all franchise imposed standards. (Ord. 89-28, 1/23/90)
4.12.170 Sale, Transfer, Stock Transfer, Lease, Assignment, Hypothecation or Change in Control of Franchise—Conditions.
A. 1. The franchisee shall not sell, transfer, assign, lease, hypothecate, place in trust or change the control of the franchise or any part thereof, except with the prior consent of the City Council, and after payment of the fees required by Section 4.14.025. The City Council’s consent shall not be unreasonably withheld. As used in this section, “transfer” includes stock transfer and “control” includes actual working control in whatever manner exercised.
2. Franchisee shall inform the City Council of any pending sale, transfer, lease, assignment, hypothecation, placing in trust or change in control, except as excluded in subsection B. Transferor and transferee must file an application for City Council’s consent to transfer control of or assign the franchise as set forth in subsections D and E. Such applications shall be accompanied by the fees required by Section 4.14.025(A) and shall be signed by duly authorized representative(s) and the signature(s) acknowledged by a notary.
3. Franchisee shall file with the City Council a certified copy of the duly executed instrument of such sale, transfer, assignment, lease, hypothecation, trust or change in control within 30 days of the effective date of such sale, transfer, assignment, lease, hypothecation, trust or change in control. If such duly executed instrument is not filed with the City Council within 30 days after the effective date of such sale, transfer, assignment, lease, hypothecation, trust or change in control, then upon the expiration of said 30 days, the franchise shall be subject to forfeiture and the City Council may, without notice, by ordinance repeal the franchise.
4. As a condition to the granting of consent to such sale, transfer, assignment, lease, hypothecation, trust or change in control, the City Council may impose such additional terms and conditions upon the franchise and upon the grantee or assignee which the Council deems to be in the public interest. Such additional terms and conditions shall be expressed by ordinance. Nothing herein contained shall be construed to grant to the franchisee the right to sell, transfer, assign, lease, hypothecate, place in trust or change control of the franchise or any part thereof except in the manner aforesaid. This section applies to any assignment, whether by operation of law, by voluntary act of the franchisee, or otherwise. (Ord. 89-28, 1/23/90)
4.12.180 Report Requirements.
A. The franchisee, during the term of the franchise, within 60 days after the expiration of each calendar year, shall file with the Revenue Collector, one copy to each, of a report verified by the oath of the franchisee, or by the oath of a duly authorized representative of the franchisee, setting forth in detail the computation of the amount of the franchise payment due for the immediately preceding calendar year. For each physically separate transmission and distribution system, any portion of which is located within the franchise area, the report shall contain:
1. A detailed profit and loss statement showing all gross receipts and expenses derived from the franchisee’s franchise operations during the reporting period.
2. The total number of service connections in operation as of the last day of the calendar year.
B. Franchisee shall also provide on request such additional data as is reasonably necessary in the opinion of the Revenue Collector to calculate or verify the calculation of the annual payment required by Section 4.16.010.
C. File with the Revenue Collector a report in duplicate showing:
1. The permit number of each permit obtained for the doing of any work under the franchise for which a permit is required during the immediately preceding franchise report period;
2. The lineal length of lines and cables installed pursuant to each permit during the immediately preceding franchise report period.
D. The City reserves the power to assess a penalty of $250.00 per day for each day beyond the reporting period that the franchise fails to file any report required by this Section 4.12.180. (Ord. 89-28, 1/23/90)
4.12.190 Liability and Indemnification.
A. Franchisee shall indemnify and hold City harmless from and against any and all loss, damages, liability, claims, suits, costs and expenses, including reasonable attorneys’ fees, regardless of the merit or outcome of any such claim or suit, claimed or arising from any negligent or intentional act or omission of franchisee, its officers, employees, agents or subcontractors, arising from activities or work conducted pursuant to the franchise.
B. Franchisee shall indemnify, defend and save harmless the City, its officers, agents and employees, from and against any and all claims and losses whatsoever, including reasonable attorneys’ fees, accruing or resulting to any and all persons, firms or corporations furnishing or supplying work, services, materials, equipment or supplies in connection with activities or work conducted or performed pursuant to the franchise and arising out of such activities or work, and from any and all claims and losses whatsoever, including reasonable attorneys’ fees, accruing or resulting to any person, firm or corporation for damage, injury or death arising out of franchisee’s franchise operations. (Ord. 89-28, 1/23/90)
4.12.200 Additional Terms and Conditions.
In addition to the provisions of Section 4.12.170, any time a franchisee applies for a change in territory, service area, or bonding, the Council may impose such additional terms and conditions upon the franchisee and upon the grantee or assignee which the Council may deem to be in the public interest. Such additional terms and conditions shall be expressed by ordinance. (Ord. 89-28, 1/23/90)
4.12.210 Permit Required for Certain Work.
Notwithstanding the granting of a franchise, the franchisee shall not be authorized to do any work under the franchise for which the issuance of a permit is required unless such a permit is issued for such work. (Ord. 89-28, 1/23/90)
4.12.230 Purchase of Franchise Property by City.
A. The City upon termination or forfeiture of the franchise, or at any time during the term of the franchise or, after five years from the effective date of the ordinance granting the franchise, shall have the option to purchase all or part of the franchise property, upon making reasonable compensation therefore. City’s right to purchase the franchise property hereunder shall not be construed as a waiver of any other rights City may have. In the event the City elects to purchase the franchise property in accordance herewith, the compensation shall be computed as provided in Part 3, Title 7, Chapter 9, Article 4 of the Code of Civil Procedure of the State of California, provided further, that such purchase shall be at an equitable price, which shall not include compensation for loss of goodwill or any valuation of the franchise itself or of any of the rights or privileges granted by the franchise. Other terms and conditions of the sale shall be mutually agreed upon by the parties.
B. If a renewal of said franchise is denied, any acquisition of the cable system by the City shall be at fair market value, determined on the basis of the cable system valued as a going concern but with no value allocated to the franchise itself.
C. In the event the franchise is revoked and terminated and the City elects not to purchase the franchise property hereunder, franchisee agrees to waive all claims for damages or compensation which it may have against the City as a result of such revocation and termination; provided, however, franchisee does not hereby waive its rights to a judicial determination of the validity of such revocation and termination. (Ord. 89-28, 1/23/90)
4.12.240 Fair Employment Practices—Statutory Provisions Incorporated by Reference.
Franchisee shall not make any discrimination, distinction or restriction on account of color, race, religion, sex, ancestry or national origin contrary to the provisions of Section 51 of the Civil Code of the State of California, which is incorporated herein by reference. All applicable provisions of Sections 12900 through 12996 of the Government Code of the state of California (California Fair Employment and Housing Act) are hereby incorporated herein by reference. Franchisee further agrees to comply with applicable antidiscrimination provisions of Section 634 of the Cable Act. (Ord. 89-28, 1/23/90)
4.12.250 Access to Trenches.
A. In cases of new construction or property development where utilities are to be placed underground, franchisee(s) shall, if practical, install underground cable at the same time and in the same trenches as the public improvements (e.g., communications, electric, gas, water) are installed.
B. If franchisee is notified of the date the trenches are available and fails to install its conduit or cable within five working days of the date the trenches are available, and the trenches are thereafter closed after the five-day period, the cost of new trenching is to be borne by the franchisee(s).
C. The requirements of subsections A and B shall not apply unless the property owner offers franchisee the same terms with respect to availability and cost of trenching for undergrounding as are offered to other trench users, if any.
D. In the event that a subdivider, property developer or an entity owned by, associated with or under the control of a subdivider or developer has a franchise to provide cable services to an area including its property development(s), the franchisee shall be required to make access to the utility trenches in the development(s) available to all franchisees authorized to provide cable services to an area including the development(s). Access shall be provided at the same terms with respect to availability and cost of trenching for undergrounding as is provided to other trench users, if any. (Ord. 89-28, 1/23/90)
4.12.260 Undergrounding of Cable.
All Cable and, to the extent possible, all additional facilities shall be installed underground and in accordance with this Title. (Ord. 89-28, 1/23/90)