Amador City Municipal Code Ch. 5.08 Catv Systems

As used in this chapter:

"Cable service" means: (i) the one-way transmission to subscribers of video programming; and (ii) subscriber interaction if any, which is required for the selection or use of such video programming.

"Cable system" means a system of antennas, cables, wires, lines, fiber optic cables, waveguides or other conductors, converters, equipment or facilities, used for distributing video programming to home subscribers, and/or producing, receiving, amplifying, storing, processing, or distributing audio, video, digital or other forms of signals. cable system does not include common carrier telephone service.

"City" means Amador City, a municipal corporation of the state of California, in its present incorporated form or in any later reorganized or enlarged form.

"Council" means the present governing body of the city and/or any future governing body of the city.

"Franchise" means authorization granted by the city in the form of a contract to construct, operate and maintain a cable system within the city pursuant to the Government Code of the state of California Section 53066.

"Franchise area" means the entire area within the city and shall include any future enlargements and additions to the city.

"Grantee" means the person, or legal entity and its lawful successor, transferee, or assignee, to whom the council has granted a franchise to operate a cable system and/or video provider system.

"Gross revenues" means all revenues received by the grantee from subscribers for cable services delivered over the cable system utilizing the franchise and service area within the city. The term shall include, but not be limited to, cable installation and cable re-connection fees, subscriber fees for basic service, charge for lease of channels, revenue from pay television service, revenue from cable services delivered over the cable system. The term shall not include any revenue generated from advertising, any type of converter rentals or equipment rentals. In addition, gross revenues shall not include any taxes on services furnished by grantee imposed directly or indirectly on any subscriber by any state, city or other governmental unit or third party and collected by the grantee on behalf of such entity; and, provided further that gross revenues shall not include adjustments to cash receipts and non-operating cash receipts such as bad debts, refunds, credit adjustments, returned checks, and sales of assets.

"Material breach" means any substantial and repeated failure to comply with the consumer service standards set forth in California Government Code Sections 53055, 53088.2 and/or the terms and conditions of this chapter.

"Property of the grantee" means all property owned, installed or used by grantee in the conduct of a franchised cable system and/or video provider business within the city.

"Service area" means that part of the franchise area which passes through the public rights-of-way.

"Streets" or "public rights-of-way" means the surface of and the space above and below any public street, road, highway, freeway, lane, alley, sidewalk, parkway, driveway, public utility easement, dedicated utility strip, or right-of-way dedicated for compatible uses now or hereafter existing as such within the city.

"Subscriber" means any person or entity within the city's franchise and service area lawfully receiving for any purpose any service from the grantee and with the grantee's express permission, including, but not limited to the conventional cable television service or retransmission of television broadcast, pay television, radio signals, home alarm system monitoring services, data transmission or receiving services, any cable related services for which grantee receives compensation, and/or video provider services.

"Video provider" means any person, company, or service which provides one or more channels of video programming to a residence, including a home, condominium, apartment or mobilehome, where some fee is paid, whether directly or as included in dues and rental charges, for that services, whether or not public rights of way are utilized in the delivery of the video programming. A "video provider" shall include, but not be limited to, providers of cable television, master antenna television, satellite master antenna television, direct broadcast satellite, multipoint distribution services, and any other providers of video programming, whatever their technology.

(Ord. 105.1 § 2, 1996)

The city may grant a nonexclusive franchise to construct, operate, and maintain a cable system and/or a cable system operating as a video provider to any person or legal entity, whether or not operating under the provisions and terms of this chapter. The grantee shall be obligated to make service available within the service area as defined by the franchise. Grantee shall have the right but not the obligation to install, construct, repair, replace, rebuild, or maintain a cable system and/or video provider system in any location outside the service area, including, but not limited to, private gated communities. This chapter does not require the council to grant a franchise when, in the council's opinion, granting a franchise is not in the public interest. No franchise shall be granted on terms and conditions different from or less favorable than any other franchise granted by the council.

(Ord. 105.1 § 3, 1996)

Any franchise granted pursuant to the provision of this chapter shall authorize and permit the grantee to engage in the business of operating and providing a CATV system in the city, and for that purpose to install, construct, repair, replace, reconstruct, and maintain in, on, over, under, upon, across and along any public street, such wires, cables, conductors, conduit, vaults, amplifiers, appliances, and other property as may be installed except where unusual circumstances exist and where express written permission is provided by the city council.

(Ord. 105.1 § 4, 1996)

A. No franchise shall be for a term longer than twenty-five (25) years. The council may grant a franchise for any shorter term.

B. A franchise may be terminated prior to its expiration by:

1. Mutual agreement of the council and the grantee; or

2. A finding of the council, after a public hearing set no less than thirty (30) days after notice to the grantee, that:

a. The grantee has failed to materially comply with any provision of this chapter,

b. The grantee has materially breached the terms of the franchise contract,

c. The grantee has materially breached the provisions of California Government Code Sections 53055, 53055.1, 53056, 53088.2,

d. The grantee has attempted to evade any material and fundamental provision of this chapter,

e. The grantee has failed to restore service after ninety-six (96) consecutive hours of interrupted service throughout the service area (except when approval of such interruption is obtained from city or where such interruption is caused by acts of nature),

f. The grantee has misrepresented a material fact in grantee's proposal or negotiation of the franchise, or

g. Failure of the grantee to allow inspection of the business and financial records as provided below.

C. Prior to any forfeiture or termination, city or its duly appointed agent and/or representative shall set forth the items of breach and make written demand that the grantee comply with the applicable requirement. If the failure, refusal or neglect of the grantee continues for a period of thirty (30) days following such written demand or if the failure, refusal or neglect cannot be cured, city or its duly appointed agent and/or representative may place its request for termination of the franchise upon the city council agenda for consideration, review and/or decision by the city council. At least thirty (30) days prior to the date of such city council meeting, the city or its duly appointed agent and/or representative shall cause to be served upon grantee (a) written notice of intent to request such termination, and the basis for such request, and (b) statement of the time and place of meeting.

D. In the event that the items of breach set forth above requires substantial additional financial commitments by the grantee for its cure, city shall allow an additional time. The additional time shall be reasonable in the light of the additional financial commitment required.

E. The city may, upon due notice given by city to grantee and in lieu of termination and/or forfeiture of the franchise assess monetary sanctions against grantee by fine or penalty in the hereinafter designated amounts for material breaches of this chapter or material breaches of California Government Code Sections 53055, 53088.2.

1. The fines and/or penalties are as follows:

a. For each day of material breach the sum of fifty dollars ($50.00) to a maximum of two hundred dollars ($200.00).

b. For each subsequent material breach of the same nature occurring within twelve (12) months, for which material breach the city has previously given notice and assessed a fine or penalty, the penalty or fine will be increased by the city to one hundred dollars ($100.00) per day to a maximum of six hundred dollars ($600.00) .

2. In assessing a fine or penalty pursuant to subsection (E)(1) of this section (supra) the following shall apply:

a. The city shall give the grantee written notice of any alleged material breach of this chapter and/or Government Code Sections 53055, 53055.1, 53056, 53088.2 and allow the grantee at least thirty (30) days to from receipt of the written notice to remedy the specific breach.

b. A material breach for the purpose of assessing penalties shall be deemed to have occurred for each day, following the expiration of the period described in subsection C of this section, that any material breach has not been remedied by the grantee, irrespective of the number of customers affected.

3. In no event shall city impose a fine or penalty for material breaches against grantee where the breach is outside of the reasonable control of grantee.

(Ord. 105.1 § 5, 1996)

For the use of the city franchise and service area and for the purpose of providing revenue to defray city's administrative costs in administering and enforcing this chapter, grantee shall, during the term of the franchise, pay to the city annually, in lawful money of the United States of America, five percent of the grantee's gross revenues collected from subscribers within the city, or in any manner gained and derived in each calendar year or portion thereof, by the grantee from the operation of the cable system and related activities within the franchise and service area of city. The fee shall not exceed the maximum fee set by state or federal law. The franchise may set out a method of adjusting the fees during the franchise period.

The grantee shall pay the franchise fee to the city clerk. The grantee shall submit, within sixty (60) days after the expiration of the calendar year, a statement detailing the gross revenues derived the preceding year. The grantee shall pay the franchise fee to the city clerk; payment must be postmarked by the tenth day after the time for filing such statement.

Each payment shall be accompanied by a statement verified by the grantee, or an officer thereof, showing, in such form and details as the city may require, the facts material to substantiate the amount and method of computation of the franchise fee.

In the event that the grantee wilfully withholds payment of the fees specified, the grantee shall pay the city liquidated damages of two percent per month on the unpaid balance.

(Ord. 105.1 § 6, 1996)

All franchises shall be governed by the following provisions:

A. Franchises shall be nonexclusive as to service area.

B. No privilege shall be granted in any franchise except those granted by this chapter and in subsequent franchise agreements.

C. All transmission and distribution structures shall be located so as not to interfere with the proper use of public rights-of-way and shall be positioned to cause the least interference with the right of reasonable convenience of property owners who adjoin any such public rights-of-way.

D. In the case of any disturbance of pavement or other surfacing by the grantee, the grantee shall, at its own cost and in a manner approved by the city, replace and restore all pavement and surfacing in as good a condition as before the disturbance.

E. Whenever it is necessary to interrupt service for repairs or alterations, the grantee shall make reasonable efforts to do so at a time which will cause the least inconvenience to the subscribers.

F. A franchise is a privilege to be held in personal trust by the grantee. The franchise cannot be sold, transferred, leased, assigned, or disposed of in whole or in part by forced or involuntary sale, merger, consolidation, operation of law or otherwise without the prior consent of the council, expressed by resolution and under such conditions as set by the council. Such consent of the council shall not be unreasonably withheld. grantee shall not be required to receive the council's consent for sales, transfers, leases, or assignment of the franchise among or between commonly controlled companies.

G. Time is of the essence in the performance of a franchise. The grantee shall not be relieved of its obligation to comply promptly with any provision of this chapter or its franchise by any failure of the city to enforce prompt compliance.

H. The city may delegate any of its rights and powers to any city employee or officer;

I. The grantee shall be subject to all city ordinances, rules, regulations, building codes and other enactments relating to public works and construction, including, but not limited to, the undergrounding of utilities, street work, and relocation of property within public rights-of-way.

J. Neither this chapter nor a franchise shall relieve a grantee of any obligation involved in obtaining pole space from any utility company or other entity maintaining poles in public rights-of-way.

K. Grantee shall, at all times during the franchise, comply with all existing and future laws, rules, and regulations of general applicability of the city, the state of California, and the Untied States of America.

L. If at any time during the franchise period the city shall elect to alter or change the width or grade of any public rights-of-way, the grantee shall, upon reasonable written notice by the city to the grantee, remove, relay, or relocate its facilities. The first such move shall be at the grantee's expense; subsequent moves shall be at the city's expense.

M. Any fixtures placed in any public rights-of-way by the grantee shall be placed in such a manner that does not interfere with the travel or use of such public rights-of-way.

N. The grantee shall, when requested by any person holding a permit to move a building, temporarily relocate its wires to permit the moving of the building. The cost of moving the grantee's wires shall be borne by the requesting person. The grantee may require payment in advance.

O. Grantee is authorized to trim vegetation along any public rights-of-way in order to prevent that vegetation from contacting the grantee's wires and cables. Upon grantee's request, the city may trim the vegetation. If the city trims the vegetation, then the city may recover from grantee only that pro rata portion of the costs that are reasonably caused as a result of grantee's wires and cables.

P. In all sections of the city where the cables, wires, and other facilities of all other public utilities are places underground, the grantee shall place its cables, wires, or other like facilities underground.

Q. It is unlawful for the owner of any privately owned area which includes a proposed public right-of-way on any tentative subdivision map approved by the city to fail to grant access to streets, individual homes, or home sites, in such privately owned area to each grantee on terms identical to or as favorable as the terms offered to any other public utility or grantee.

R. The prevailing party shall receive reasonable attorney fees and costs incurred as the result of any litigation, arbitration, or mediation of disputes between the city and the grantee.

S. Any additional franchises granted under this chapter to provide cable television service within the city shall require the grantee of such additional franchise to wire and serve the service area embraced by such franchise within a reasonable time and in a sequence which does not discriminate against the lower income or minority residents and shall contain the same requirements set forth in other cable system franchises granted by the city.

T. Subscription Agreement. Before grantee shall provide service to any subscriber, grantee shall obtain a signed contract from the subscriber containing a provision substantially as follows:

Subscriber understands that in providing service grantee is making use of public right-of-way within the city of Amador city, and that the continued use of these public rights-of-way is in no way guaranteed. If the continued use of such rights-of-way is denied to grantee for any reason, grantee will make every reasonable effort to provide service over alternate routes. subscriber agrees he will make no claim nor undertake any action against the city, its officers, its employees, or grantee if a service to be provided by grantee hereunder is interrupted or discontinued because the continued use of such rights-of-way is denied to grantee for any reason.

U. All customer complaints, comments or suggestions regarding technical quality or programming shall be directed to the cable company.

(Ord. 105.1 § 7, 1996)

The following rights are reserved to the city:

A. The right to acquire the property of the grantee either by purchase or through eminent domain, at fair market value. Any taking of the property of the grantee through eminent domain and any subsequent valuation shall be conducted in accordance with the laws of the state of California and the Communications Act of 1934, as amended.

B. Every right and power which is required to be reserved or provided by any ordinance of the city. The grantee by its acceptance of any franchise agrees to be bound by and to comply with any action or requirements of the city in its exercise of such rights and powers.

C. The right to grant subsequent and coexisting franchises to any other persons or entities.

D. The right to enter into mutually agreeable discussions and to negotiate amendments to construction, operation, or maintenance standards that modify a franchise prior to the expiration of a franchise term. No modifications or amendments shall become effective until all grantees agree to such modifications or amendments.

E. The granting of any franchise shall not constitute a waiver to the exercise of any governmental right or power of the city. The council is hereby authorized and empowered to adjust, settle, or compromise any controversy between the grantee and the city arising from the operations of the grantee.

(Ord. 105.1 § 8, 1996)

The grantee shall comply with the following time limits:

A. Within ninety (90) days after acceptance of a franchise, the grantee shall proceed with due diligence to obtain all required permits, including, but not limited to, any utility joint use agreement, microwave carrier licenses and any other permits, licenses, and authorizations required by any regulatory agencies having jurisdiction over the operation of cable systems.

B. Within ninety (90) days after obtaining all required permits, grantee shall commence construction and installation of the cable system, weather permitting.

C. Within a reasonable time, not to exceed one year after the commencement of construction, grantee shall make service available to subscribers in the service area as designated in the franchise and to all public schools within the service area.

D. Failure of the grantee to timely perform the requirements set forth in subsections A through C of this section shall be cause for termination of the franchise.

E. The time for performance of subsections A through C of this section shall be extended if the grantee, acting in good faith, experiences delays by reason of circumstances beyond its control.

(Ord. 105.1 § 9, 1996)

The following shall apply to the removal of the cable system:

A. In the event that the use of a substantial part of the cable system is discontinued, except for a reasonable cause, for a continuous period of sixty (60) days, or if the franchise has been terminated, canceled or has expired, the grantee shall promptly, upon being given sixty (60) days notice, by certified mail, remove from the public rights-of-way all property of such system. Upon such removal, the grantee shall restore such public rights-of-way to as good a condition before the removal.

B. Any property of the grantee remaining in place ninety (90) days after termination, cancellation, or expiration of the franchise shall become the property of the city. For purposes of this section, lawful extensions of the franchise beyond the expiration date shall not constitute abandonment.

(Ord. 105.1 § 10, 1996)

In the event that the grantee fails to restore a public right-of-way to its previous condition as required by this chapter or franchise, the city may, at its option, have the restoration work performed at the grantee's expense. The grantee shall pay the cost of such work within ten (10) days after receipt of an itemized bill for the restoration work.

(Ord. 105.1 § 11, 1996)

The grantee shall with the filing of an acceptance or award of any franchise created under this chapter, file with the city clerk, a performance bond or bonds as required by the franchise. Such bond or bonds shall be maintained for the duration of the franchise, for periods and in amounts specified in the franchise and shall be at the grantee's sole expense. The bond or bonds shall be corporate surety bonds in a company and in a form approved by the city attorney. If the grantee fails to comply with any provision of this chapter or the franchise, the city shall recover damages and reasonable attorney fees and costs jointly and severally from the principal and surety of such bond up to the full amount of the bond or bonds.

(Ord. 105.1 § 12, 1996)

A. Inspection of Property, Transactions and Maps Required of Grantee. At all reasonable times, grantee shall permit any duly authorized representative of city to examine its cable system, together with any appurtenant property of the grantee situated within the franchise and service area, and to examine any and all maps kept or maintained by the grantee or under its control which address or relate to the operations, affairs, transactions or property of the grantee with respect to the cable system. If any such documents are not kept in the franchise and/or service area, such documents shall, upon reasonable request, be made available to the city.

B. Inspection of Records and Reports Required of Grantee.

1. Upon thirty (30) days notice the city may request that grantee provide to city a summary of service calls for the previous month showing type of service, nature of complaint and resolution of service call.

2. City reserves the right during the life of the franchise and for one year thereafter to have access at all normal business hours and upon the giving of reasonable notice to the grantee's nonproprietary and accessible contracts, engineering plans, accounting, financial data, and service records relating to the property and the operations of the grantee within the franchise and service areas and to all other records required to be kept under this agreement.

(Ord. 105.1 § 13, 1996)

A. The grantee shall indemnify, protect, hold harmless and defend the city, its council members, officers, employees and agents from and against any and all claims, liability, demands, actions, costs, expenses, attorneys' fees, judgments, awards for damages, suits and proceedings of any nature whatever, arising out of or in any way connected with acts, omissions, operations or activities under, pursuant to, or authorized by this agreement by grantee or by its officers, employees, agents, contractors, subcontractors, or consultants.

B. The grantee shall, at its sole cost and expense, maintain in effect at all times during the duration of this agreement comprehensive general and automobile liability insurance in a form acceptable to the city's attorney. The insurance shall include, but shall not be limited to, protection against claims arising from death, bodily or personal injury, or damage to property resulting from grantee's construction, operation, or maintenance under this franchise, or by its employees, agents, consultants, contractors, subcontractors, or anyone directly or indirectly employee, retained or contracted by any of the foregoing. The amount of the insurance shall not be less than one million dollars ($1,000,000.00) single limit coverage applying to death, bodily and personal injury or property damage, or a combination thereof.

Prior to commencing work under the franchise the grantee shall provide the city with a certificate of insurance evidencing that all insurance required by this franchise has been obtained and is in full force and effect. The certificate shall provide that thirty (30) days written notice of any change or cancellation of the insurance shall be provided to the city. Such insurance and certificate shall include a provision for endorsement naming the city, its council members, officers, employees and agents, as additional insured with respect to liability arising out of the performance of grantee under the franchise, and providing that, for the purposes of this provision, such insurance is primary insurance with respect to the interest of the city and that of any other insurance maintained by the city.

(Ord. 105.1 § 14, 1996)

The grantee shall construct, install, operate and maintain its system in a manner consistent with FCC technical standards.

(Ord. 105.1 § 15, 1996)

All notices provided for in this chapter shall be prepaid, registered mail addressed to the city as follows:

City of Amador City

Box 200

Amador City, CA 95601

(Ord. 105.1 § 16, 1996)

All cable system service shall be provided to subscribers on an equal and uniform basis. No person, firm, corporation, or other entity within the city limits and where trunk lines are in place, shall be refused service; provided, however, that the grantee shall not be required to provide service to any subscribers who does not pay the grantee the applicable connection fee, service charges, past due fees and service call fees as may from time to time be charged.

(Ord. 105.1 § 17, 1996)

This chapter may be amended, supplemented or otherwise modified if required, only by an amended ordinance passed by city, subject to the requirements specified in Section 5.08.080(D).

(Ord. 105.1 § 18, 1996)

Any waiver at any time by either party hereto of its rights with respect to a breach or default, or any other matter arising in connection with this franchise and this chapter, shall not be deemed to be a waiver with respect to any other breach, default or matter.

(Ord. 105.1 § 20, 1996)

The use by either party of any remedy specified herein for the enforcement of this chapter and franchise is not exclusive and shall not deprive the party using such remedy of, or limit the application of, any other remedy provided by law.

(Ord. 105.1 § 21, 1996)