Diamond Bar Municipal Code Div. 1 Generally

The ordinance codified in this chapter shall be known and may be cited as the "Master Cable Television System Franchise Ordinance" or "Master CATV Ordinance."

(Ord. No. 14(1989), § 2(16.60.010), 6-27-89)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.

Advertising receipts means any and all income, compensation, fees and other consideration received directly or indirectly by franchisee, derived from any form of advertising, relating directly or indirectly to franchisee's franchise activities and operations.

Basic service means the simultaneous delivery by franchisee to television receivers, or any other suitable type of audio-video communication receivers, of any service other than an enhanced service distributed over the system, and at a minimum must include all public, educational and governmental use (PEG) channels and all broadcast channels required to be carried pursuant to federal law.

Cable Act means the Federal Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98 stat. 2779(1984), which amends the Federal Communications Act of 1934, and as hereafter amended.

Cable service means the one-way transmission to subscribers and institutional users of video programming and other programming services, together with return capability, if any. Examples of cable services include but are not limited to: video programming, pay-per-view, voter preference polls in the context of a video program, teletexts, one-way transmission of any computer software, and one-way videotex services, such as stock market information.

Cable television system or system means a system of antennas, cables, wires, lines, towers, waveguides, microwaves, microwave, laser beam, fiber optics, master antenna system, multiple distribution system, satellite, or any other conductors, converters, equipment or facilities designed and constructed for the purpose of producing, receiving, amplifying and distributing audio, video, voice, data signals, digital signals, fiber optic signals, and other forms of electronic or electrical signals, located in the city, and constructed or used for one or more of the following purposes:

(1) Collecting and amplifying local and distant broadcast television or radio signals and distributing and transmitting them;

(2) Transmitting original cablecast programming not received through television broadcast signals;

(3) Transmitting television pictures, film and videotape programs not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers;

(4) Transmitting and receiving all other signals: digital, voice and audio-visual; and

(5) Any other applications used in transmitting audio and/or visual signals.

Such term also means "community antenna television system" (as that term is used in Government Code § 53066), "CATV system," "cable system" or "cable communications system." An exception to the above definition is a state or interstate common carrier over which the city has no jurisdiction.

Commission means the county's business license commission.

Construction means any new construction, reconstruction, upgrade, mandatory extensions, or reconfigurations (e.g., converter change-out, channel upgrades) of the cable television system.

Department means the facilities management department, or its successor, of the county.

Director means director, facilities management department of the county, or his authorized representative.

Enhanced service means any service distributed over the subscriber system for which there is a per channel, per unit, or per package charge to the subscriber.

FCC means the Federal Communications Commission, its designee or any successor thereto.

Franchisee or grantee means the person to whom a franchise is granted pursuant to this chapter, and any person to whom it lawfully may be assigned.

Franchise payment period means the period from the effective date of the ordinance granting the franchise through December 31 of the year granting the franchise, and each calendar year thereafter, during the term of the franchise.

Franchise property or facilities mean any and all property of the franchisee, including, but not limited to, service connections with the franchisee's facilities, whether installed by the franchisee or not, erected, constructed, installed, laid, operated or maintained in the unincorporated territory of the county pursuant to any right or privilege granted by the franchise.

Franchise report period in all cases means the period from the effective date of the ordinance granting the franchise through December 31 of the year of granting the franchise, and each calendar year thereafter, during the term of the franchise.

Gross revenues means any and all income, compensation, fees and other consideration received directly or indirectly by franchisee, its affiliates, subsidiaries, parent, and any other person or entity in which the franchisee has a financial interest or which has a financial interest in the franchisee, arising from or attributable to operation of the cable television system, including, but not limited to, the following sources:

(1) Installation fees, disconnect and reconnect fees and fees for regular cable benefits, including the transmission of broadcast signals and access and local origination channels, if any, derived from its operations within the authorized franchise area;

(2) Basic subscriber receipts;

(3) Enhanced service receipts, including, but not limited to, income derived from pre program or per channel charges;

(4) Advertising receipts;

(5) Lease receipts; and

(6) Any other income from any source derived from franchisee's franchise operations.

Headend means the electronic processing center for distribution of the signals received from the master antenna.

Highway means any public highway, including bridges, freeway (except a state freeway), street, road, alley, lane, trail or court, or other public property or public easement, and above and below the same, which now exists or which may hereafter exist in any territory of the city and in which the city has the authority to grant a franchise.

Lease receipts means any and all income, compensation, fees and other consideration received directly or indirectly by franchisee for the lease or rental of franchise property, and compensation for any service in connection therewith including, but not limited to, studio and equipment rental and production costs of any channel permitted or designated by the FCC to be so leased or rented.

Leased channel means a channel on the cable system on which the franchisee shall provide open, widespread, and reasonable access to persons who desire to use such channel for commercial purposes, as defined in section 612 of the Cable Act.

PEG means public, educational and governmental uses as defined in section 611 of the Cable Act.

PEG user means a party utilizing a PEG channel for purposes of production or transmission of material to subscribers, as contrasted with receipt thereof in a subscriber capacity.

Person means any individual, firm, partnership, association, corporation, joint venture, company or other legally recognized entity, whether for-profit or not-for-profit, but shall not mean the city.

Public easement means, but is not limited to, any easement created by dedication to the public, the city, or any public entity, for public-utility purposes or any other purpose whatsoever.

Public entity means any district or other political subdivision of which the city council is ex officio the governing body, or the members of the city council are ex officio members of the governing body.

Road commissioner means the commission, board or officer of the state, or of the city, respectively, having powers and duties analogous or similar in such jurisdiction, respectively, to the powers and duties of the road commissioner in the unincorporated territory of the county.

Service means any basic service, any enhanced service, or any other service, whether or not originated by the franchisee, which is offered to any subscriber in conjunction with, or which is distributed over, the system.

Service area means that area of the city in which the franchisee is authorized to construct and operate, and provide service connections for, a cable television system pursuant to the terms and conditions of the franchise.

State of the art means that level of technical performance or capacity, service, plant or other equipment, production or other facilities, or construction techniques for which there is a reasonable market demand and which has been developed and demonstrated to be workable and such that it would be economically feasible and viable in the franchise area during the term of the franchise.

Subscriber means any person or entity lawfully receiving for any purpose any service of the franchisee's cable television system, including the ultimate recipient of any distribution of franchisee's service.

Tier or tier of service means a grouping of program services on the cable television system which is marketed to subscribers for a single monthly or other charge.

(Ord. No. 14(1989), § 2(16.58.020, 16.58.030, 16.58.052, 16.58.054, 16.58.060, 16.58.070, 16.58.075, 16.58.100, 16.58.110, 16.58.115, 16.58.120, 16.58.140—16.58.200, 16.58.205, 16.58.232, 16.58.235, 16.58.240—16.58.270, 16.58.295, 16.58.300, 16.58.305, 16.58.310, 16.58.320), 6-27-89)

Cross reference— Definitions generally, § 1.00.070.

It is the purpose of the ordinance codified in this chapter 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. No. 14(1989), § 2(16.60.020), 6-27-89)

The provisions of this chapter, 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. No. 14(1989), § 2(16.60.030), 6-27-89)

In addition to the terms and conditions set out in this chapter, the franchise is granted under the same terms and conditions contained in sections 13.08.050, 13.08.130, 13.08.140, 13.08.170, 13.08.260 through 13.08.280, 13.08.300, 13.08.310, 13.08.330, 13.08.340, 13.08.380 through 13.08.400, 13.08.430, 13.08.450, 13.08.460 and 13.08.500 through 13.08.520 as if they were contained in this chapter. If the terms and conditions hereof conflict with the terms and conditions of chapter 13.08, the terms and conditions of this chapter shall control.

(Ord. No. 14(1989), § 2(16.60.040), 6-27-89)

Article X, beginning with section 1001, of county ordinance 7468, entitled "the basic franchise ordinance," adopted February 3, 1959, as in effect immediately prior to the effective date of the ordinance codified in this chapter, shall continue in effect notwithstanding its repeal by the provisions hereof, as to all franchises granted prior to December 15, 1978, the effective date of the ordinance codified in this chapter, which refer to, or incorporate by reference ordinance 7468, or article X of such ordinance 7468.

(Ord. No. 14(1989), § 2(16.60.050), 6-27-89)

All franchises for a cable television system shall be granted pursuant to Government Code § 53066.

(Ord. No. 14(1989), § 2(16.60.060), 6-27-89)

Whenever the FCC or the state public utilities commission or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over any specific provisions of the franchise, such paramount jurisdiction shall preempt or preclude the exercise of like jurisdiction by the city.

(Ord. No. 14(1989), § 2(16.60.070), 6-27-89)

(a) The rights reserved to the city under this chapter are in addition to all other rights of the city, whether reserved by this chapter 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) The 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) Wherever the franchise requires that an action be taken or not taken by the franchisee or the city on the basis of operational, technological or economic feasibility or viability, the franchisee shall have the burden of demonstrating the existence or lack, as applicable, of such feasibility or viability.

(d) 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. No. 14(1989), § 2(16.60.080), 6-27-89)

Every franchise granted by the city after December 15, 1978, to construct from time to time and, for the period covered by the franchise, to maintain and operate a cable television system in the territory of the city, 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 in the territory of the city, 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 chapter, in addition to such of the terms and conditions of those provisions of division 1 of chapter 13.08, as are incorporated by reference in this chapter, and in addition to those rules, regulations, restrictions, terms and conditions set forth in the ordinance granting the franchise.

(Ord. No. 14(1989), § 2(16.60.090), 6-27-89)

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. No. 14(1989), § 2(16.60.100), 6-27-89)

Nothing contained in this chapter shall ever be construed so as to exempt the franchisee from compliance with all ordinances, rules or regulations of the city now in effect or which may be hereafter adopted which are not inconsistent with the terms of the franchise.

(Ord. No. 14(1989), § 2(16.60.105), 6-27-89)

(a) The franchisee shall, within 30 days after the passage of the ordinance granting the franchise, file with the city clerk, an express and unconditional written acceptance of the terms and conditions of the ordinance; provided, however, that as to franchises granted to the United States of America, use will constitute acceptance.

(b) The parent entity, if any, of the franchisee, shall file a letter with the city, concurrent with the franchisee's letter of acceptance, which guarantees the performance of each and every term, covenant and condition imposed on the franchisee pursuant to the franchise.

(c) The franchisee's letter of acceptance shall be signed by a duly authorized representative of the franchisee, whose signature shall be acknowledged by a notary, and shall be accompanied by the performance bond, letter of credit, and evidence of insurance required by this chapter and by the ordinance granting the franchise.

(d) The ordinance granting the franchise shall be rendered null and void until such time as the franchisee meets the acceptance criteria contained in this section.

(Ord. No. 14(1989), § 2(16.60.110), 6-27-89)

The franchisee, by acceptance of the franchise granted pursuant to the ordinance, expressly acknowledges and accepts the right of the city to issue a franchise. The franchisee further acknowledges and accepts the right of the city to exercise directly or delegate its regulatory power to a subordinate body or its officers, employees, agencies, committees, or departments to ensure the proper implementation of the franchise.

(Ord. No. 14(1989), § 2(16.60.115), 6-27-89)

Unless the ordinance granting the franchise provides otherwise, the term of the franchise shall be 15 years.

(Ord. No. 14(1989), § 2(16.60.120), 6-27-89)

(a) A 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 the franchise. Nothing in this section shall be deemed to prevent the parties indemnified and held harmless herein 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 party.

(b) Without limiting a franchisee's indemnification of the city pursuant to subsection (a) of this section and section 13.12.590, the 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 insurers satisfactory to the 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 the franchisee's operations under the franchise. Such evidence shall specifically identify the franchise and shall contain express conditions that the 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 the 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. Such amounts of coverage shall be subject to review and adjustment by the city, at the 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 the 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, 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. The franchisee may provide, if applicable, a certificate of consent to self-insure, issued by the director of industrial relations of the state. Should the franchisee utilize the self-insurance provision of this section, and the franchisee's certification of consent to self-insure expire or be revoked, the franchisee shall be required to provide a program of workers' compensation insurance prior to or upon such expiration or revocation.

(c) The franchisee shall furnish the director, prior to commencement of any franchise operations, either certified copies of the 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 the franchisee has complied with the provisions of this section, and any such operations shall be suspended during any period that the franchisee fails to maintain such policies in full force and effect.

(e) It shall be the franchisee's obligation to provide evidence of current insurance policies.

(Ord. No. 14(1989), § 2(16.60.130), 6-27-89)

(a) On or before the effective date of the ordinance granting the franchise, the franchisee shall furnish the director with a bond, payable to the city, in a form and executed by a corporate surety acceptable to the city and licensed to transact business as a surety in the state. 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. Such bond shall be conditioned upon faithful performance by the 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 the 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 the 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 pursuant to section 13.12.200. The rights reserved with respect to the performance bond are in addition to all other rights of the city.

(b) The amounts of the bond shall be subject to review and adjustment by the city, at the city's sole discretion, at any time during the term of the franchise. In the event of such adjustment, the franchisee agrees to renew the 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) The 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 ensuring the franchisee's faithful performance under the terms and conditions of the franchise prior to the date of approval of the change of ownership, or of expiration or termination. The director may release the bond prior to the end of the one-year period upon satisfaction by the franchisee of all 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 the bond in full force and effect.

(e) It shall be the franchisee's obligation to provide evidence of current bonding coverage.

(Ord. No. 14(1989), § 2(16.60.140), 6-27-89)

Failure on the part of the franchisee to procure or maintain insurance and bonding as required under the franchise shall constitute a material breach of the franchise upon which the city may immediately terminate or suspend this franchise.

(Ord. No. 14(1989), § 2(16.60.145), 6-27-89)

At its sole discretion, the city may accept assignments of savings and loan certificates, certificates of deposit, cash deposits, or U.S. government securities in lieu of commercial bonds to meet the bonding requirements of this chapter. Such alternate bonds shall be made payable to the city and shall be deposited with the county's auditor-controller in the same amount as required on such bond. Assignment of savings and loan certificates shall be subject to all of the provisions set out in this Code. Earnings, if any, on the security provided shall accrue to the franchisee.

(Ord. No. 14(1989), § 2(16.60.150), 6-27-89)

In addition to the performance bond required in section 13.12.170, the city may require a clean, irrevocable letter of credit or establishment of a security fund, to be maintained in an amount to be specified in the ordinance granting the franchise, as security for compliance with time and performance requirements of the franchise. If the city withdraws any funds from any such instrument, the franchisee shall replenish the amount withdrawn within ten business days. The rights reserved with respect to a letter of credit or a security fund are in addition to all other rights of the city.

(Ord. No. 14(1989), § 2(16.60.155), 6-27-89)