17-2 GRANT OF FRANCHISE.

a. Authorization . The Town may grant a franchise to any person whether operating under an existing license or offering to furnish and provide such a system. By accepting the franchise, the operator agrees to supply the system and services required for the full term of the franchise. No person shall distribute television or radio signals by means of a cable system unless he has a franchise to do so under this chapter.

b. Franchise is Non-Exclusive . A franchise granted under this chapter is non-exclusive. The Council shall determine when it is in the public interest to grant a franchise under this chapter. This chapter does not require the grant of a franchise or prevent the Council from permitting more than one (1) cable system to operate within the Town at any time.

c. Amendments . During the term of the franchise the Town may amend this chapter to require additional or greater standards of construction, operation or maintenance on the part of the operator, including the payment of a greater percent of the gross annual receipts of a franchise for the remaining term of the franchise.

d. Uses Permitted . A franchise authorizes the operator to engage in the business of operating and providing a cable television system within the franchise area, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street, such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, and appliances, attachments, and other property as may be necessary and appurtenant to the system; and, in addition, so to use, operate and provide similar facilities or properties rented or leased from other persons, including but not limited to a public utility or other person franchise area. Nothing in this chapter is intended to grant to the operator an easement or right-of-way over private property. This chapter does not relieve operator of any requirement of the Town now or hereafter in effect, including a requirement relating to street work, street excavation permits, undergrounding of utilities or the use, removal or relocation of property in streets.

e. Operator Rules and Regulations . The operator may impose such rules, regulations, terms and conditions governing the conduct of its business as are reasonably necessary to enable the operator to exercise its rights and perform its obligations under this franchise. However, those rules, regulations, terms and conditions may not conflict with this chapter or applicable State and Federal laws, rules and regulations. The operator shall provide to each subscriber a simple and easy to understand written summary of any rules which relate to such things as service charges; services; service installations, modifications and repairs; payment, and other items of significant interest to subscribers. The operator shall periodically supply subscribers with written notice of any substantive changes to rules which directly affect the subscriber’s charges or services.

simple and easy to understand written summary of any rules which relate to such things as service charges; services; service installations, modifications and repairs; payment, and other items of significant interest to subscribers. The operator shall periodically supply subscribers with written notice of any substantive changes to rules which directly affect the subscriber’s charges or services.

Prior to the approval of a franchise, the operator requesting the franchise shall submit a complete copy of its rules and regulations to the Town and such operating rules and regulations shall be deemed approved by the Town upon granting of the franchise. Any subsequent changes in the operator’s rules and regulations shall require prior approval of the Town, if so required by the Franchise Agreement.

f. Annexations . If incorporated territory served by operator under authority granted by Contra Costa County is annexed to the Town, the operator’s franchise issued under this chapter, including regulated subscriber rates, applies to the annexed territory upon the effective date of annexation, to the extent permitted by law.

(Ord. #23-83, §1)

a. Town Powers . Neither the grant of a franchise nor a provision of this chapter is a waiver or bar to the exercise of any other governmental right or power by the Town. In accepting a franchise, the operator acknowledges that its rights are subject to the Police power of the Town to adopt and enforce general ordinances necessary to the safety and welfare of the public, and it agrees to comply with all applicable general laws and ordinances enacted by the Town under such power.

Any conflict between this chapter and any other present or future lawful exercise of the Town’s powers shall be resolved in favor of the Town, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to the operator or cable communications systems and which contain provisions inconsistent with this chapter shall prevail only if an emergency exists constituting a danger to health, safety, property or general welfare or such exercise is mandated by law.

b. Responsibility Delegation . The Town may exercise or delegate its rights and responsibilities under this chapter. The Town may assign a right, power or duty of the Town to a designated officer, employee, department or board of Town.

c. Right to Acquire . The Town may acquire the property of the operator, in whole or in part, either by purchase or by the exercise of the right of eminent domain, at a fair market value. Fair market value does not include any amount for the franchise itself or for any of the rights or privileges granted.

d. Right to Require Removal of Property . At the expiration of the term for which the franchise is granted, or upon its revocation, the Town may require the operator to remove at its own expense its cable system from the streets and public ways within the Town.

e. Right to Inspect . The Town has the right to inspect the operator’s reports, records and facilities as provided in Section 17-8.

(Ord. #23-83, §1; Ord. #96, §1A)

a. Limitation . No privilege or exemption is granted or conferred by a franchise granted under this chapter except those specifically prescribed.

• b. Prohibitions . The operator is prohibited from doing the following:

1. Engaging in the business of selling at retail, leasing or renting television sets or radios;

2. Soliciting or referring a subscriber to persons engaged in any business which the operator may not engage in;

3. Providing information concerning the viewing patterns of identifiable individual subscribers.

c. Other Statutes . A franchise granted under this chapter is subject to present and future requirements prescribed by applicable Federal, State, County and local law.

d. Use of Other Facilities . A privilege claimed under a franchise granted in a street is subordinate to a prior or subsequent use of the street for public purposes. The franchise does not relieve the operator of its obligation to obtain electrical, encroachment or other permits from Town or a utility company.

e. Time . Time is of the essence for the franchise. The operator is not relieved of its obligations to comply promptly with any provision of this chapter by the Town’s failure to enforce prompt compliance.

(Ord. #23-83, §1, Ord. #96, §1B)

a. Franchise Fees .

1. In consideration of the granting of a franchise, the operator shall pay to the Town during the life of the franchise, a certain percentage of the system’s annual gross receipts attributable to subscribers and within the Town’s franchise area. The fee shall not be less than three (3%) percent, nor shall it exceed the maximum limit specified by law. The Town reserves the right, however, to collect a franchise fee of five (5%) percent of the operator’s gross annual receipts if and when the Town elects to seek and FCC waiver to exceed the currently authorized three (3%) percent limit. To the extent required

by a franchise agreement the Town and the operator shall jointly submit and recommend approval of an application for the FCC waiver of the three (3%) percent limit.

2. During the term of the franchise, the Town may by resolution increase the franchise fee percentage of gross annual receipts to that percentage specified as a new maximum limit for such fees by future Federal and/or State legislation.

b. Other Costs .

1. The operator shall reimburse the Town for all costs actually incurred by the Town in obtaining professional advice and assistance during the term of the operator’s franchise with respect to the appropriateness, feasibility, reasonableness and desirability of the exercise by the operator of the rights granted to it under this chapter. (Such costs may include technical testing and evaluation, evaluation of a change in rates, and review of applications for extension, renewal or transfer of the franchise.) However, the operator is not required to pay the Town more than an amount equal to two (2%) percent of annual gross receipts with respect to any calendar year for these costs. The Town’s costs for any year for which it is otherwise enTitled to reimbursement which exceed such limit may be carried forward to succeeding years and reimbursed in amounts up to two (2%) percent of annual gross receipts for up to three (3) succeeding years.

2. The reports and records required under this chapter shall be furnished at the operator’s expense.

3. The operator shall reimburse the Town for the costs expended in soliciting and evaluating applications and processing the franchise award to the extent such costs are not recovered from the application fees.

c. Payment .

1. Fees due the Town under paragraph a. shall be computed at the end of each calendar quarter on the basis of gross receipts during such quarter. Within sixty (60) days after the end of each of the first three (3) quarters of each calendar year, the operator shall pay the Town the amount due for each quarter. Within sixty (60) days after the end of each calendar year, the operator shall compute the total amount due the Town for the calendar year and shall pay that amount, less the aggregate amount of quarterly payments previously made to the Town during the calendar year. Each payment shall be accompanied by the operator’s report showing in reasonable detail (as may be specified by the Town, such specification to be changed not more often than once each year), its computation of gross receipts for the quarter or year covered. At the operator’s option, the provisions of this subsection may be satisfied on a fiscal year and fiscal quarter basis.

2. Payment of sums due to Town under paragraph b. shall be made within thirty (30) days after receipt of billing by the operator.

d. Non-Waiver . Acceptance of a payment is not a release or an accord and satisfaction of any claim the Town may have for additional sums payable or for the performance of any other obligation under this chapter.

(Ord. #23-83, §1)