San Jose Municipal Code Part 5 Conditions, Limitations and Regulations

Any franchise or franchise renewal granted under the provisions of this chapter shall be for such term as the council may specify; excepting, however, that no franchise or franchise renewal shall be granted for a term in excess of twenty-five years from and after the effective date of the ordinance which grants the same.

(Prior code § 10125.1; Ord. 22101.)

Any franchise or franchise renewal granted under the provisions of this chapter shall be nonexclusive, and neither the granting of such a franchise or franchise renewal nor any of the provisions contained therein shall prevent the city from granting any identical, similar or different franchise to any person other than grantee for all or any areas of the city.

(Prior code § 10125.13; Ord. 22101.)

Every grantee shall obey and comply with every order, direction, rule, resolution or ordinance made or prescribed by the council.

(Prior code § 10125.28; Ord. 22101.)

In addition to all other rights and powers pertaining to the city by virtue of this chapter and otherwise, the city reserves the right to impose liquidated damages, penalties or sanctions, or to terminate, cancel and revoke any franchise or franchise renewal granted hereunder and all rights and privileges of a grantee hereunder in the event that any grantee breaches any material requirement of this chapter or any franchise or franchise renewal granted pursuant to this chapter.

(Ord. 22101.)

A. In the event that any cause for liquidated damages, penalties or sanctions, or termination, cancellation or revocation under this section occurs, the following procedures shall apply:

1. The city manager shall make written demand that the grantee correct or comply with any such requirement, limitation, term, condition, rule or regulation that is a part of the cause for sanctions, termination, cancellation or revocation.

2. In the event of any failure, breach, refusal or neglect to cure, the city manager may place a request for liquidated damages, penalties, sanctions, termination, cancellation or revocation of the franchise upon a regular council meeting agenda. The city manager shall cause to be served upon such grantee, at least thirty days prior to the date of such council meeting, a written notice of the intent to request such sanctions, termination, cancellation or revocation and the time and place of the meeting, notice of which shall be published by the clerk of the council at least once ten days before such meeting in a newspaper of general circulation within the city.

3. After providing grantee with notice and an opportunity to be heard and in the event that the council determines that the grantee, by its acts or omissions, has given the city cause for sanctions, termination, cancellation or revocation of the franchise, the council may:

a. Instruct the city manager to make written demand upon grantee for full compliance within such time as the council may direct; or

b. Declare the franchise terminated and of no further force and effect; or

c. Impose liquidated damages, penalties or sanctions as follows:

i. For material failure to complete system improvements in accordance with any agreement or approved the delay by motion or resolution, due to the occurrence of conditions beyond grantee's control; a grantee shall pay five hundred dollars per day for each day, or part thereof, the deficiency continues.

d. For the purposes of this subsection, an occurrence shall he deemed a separate occurrence for each twenty-four-hour period in which it continues. In no event shall total liquidated damages exceed ten thousand dollars per month.

e. Liquidated damages levied by the grantor pursuant to this subsection shall not be general revenue to the grantor and shall be used by the grantor only for purposes related to the operation, maintenance and programming of the system.

B. No franchise shall he terminated, canceled or revoked when the grantee thereunder has made a reasonable and diligent effort in good faith, to correct or remedy the breach, failure, refusal or neglect.

C. If the council declares the franchise terminated, the city may pursue any remedies available to the city pursuant to this chapter, the franchise agreement or any other remedy available to the city as provided by law.

(Ord. 22101.)

No right, privilege or exemption is granted or conferred to, or otherwise acquired by a grantee of a franchise awarded pursuant to this chapter except those expressly and specifically granted to him in and by the franchise.

(Prior code § 10125.4; Ord. 22101.)

There is hereby reserved to the city every right and power which is required to be herein reserved or the exercise of which is provided for by any provision of any lawful ordinance or resolution of the city heretofore or hereafter enacted, and the grantee, by its acceptance of any 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.

(Prior code § 10125.24; Ord. 22101.)

The cable system authorized by any franchise granted under the provisions of this chapter shall be used solely and exclusively for the purpose or purposes expressly authorized by the franchise, and for no other purpose.

(Prior code § 10125.3; Ord. 22101.)

Any franchise or franchise renewal granted pursuant to this chapter is a privilege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned, or disposed of, either in whole or in part, either by forced sale, merger, consolidation or otherwise, without the prior consent of the council expressed by ordinance, and such consent shall not be unreasonably withheld. No such consent shall be required for any transfer in trust, mortgage or other hypothecation, as a whole, to secure an indebtedness. No sale, transfer, lease assignment or other disposition shall relieve a grantee from any of its duties and obligations under such franchise or franchise renewal. Nothing in this section shall prohibit a grantee's leasing of channel capacity. However, no grantee shall lease more than twenty-five percent of the video programming channels of its system.

(Prior code 10125.7; Ord. 22101.)

Neither the granting of any franchise or franchise renewal, nor any provision thereof shall constitute a waiver or bar to the exercise of any governmental right or power of the city.

(Prior code § 10125.25; Ord. 22101.)

All franchises or franchise renewals granted under the provisions of this chapter, and all rights and privileges granted thereby, are and shall be subordinate to the right of city and of the general public to use and occupy, and any occupancy by them of any public street or public property for municipal or public purposes, including but not limited to occupancy or use of such streets and property for traffic purposes, and for poles, lines, conduits, cables, pipelines and other municipal or public uses or purposes.

(Prior code § 10125.6; Ord. 22101.)

All franchises or franchise renewals granted under the provisions of this chapter are and shall be subordinate to any existing public utility franchises, any public utility franchises hereafter granted, or any lawful occupancy of any public highway, street, easement, road or other public property for the purpose of erecting poles, lines, conduits, cables, pipelines and other necessary fixtures and appurtenances where the same are used in connection with the purposes of the existing public utility franchise or any public utility franchises hereafter granted or any extension thereof.

(Prior code § 10125.5; Ord. 22101.)

The grantee, and all rights granted to him under this chapter, shall be subject to all applicable requirements of the city's municipal code and of all ordinances, rules, regulations and specifications of the city heretofore or hereafter enacted or established, including but not limited to those concerning street work, street excavation, use, removal and relocation of property with a street, and other street work, and grantee shall comply with the same.

(Prior code § 10125.11; Ord. 22101.)

Any right, power or duty given to or impressed upon any officer, employee, department or board of the city shall be subject to transfer by the city to any other officer, employee, department or board of the city.

(Prior code § 10125.9; Ord. 22101.)

Nothing in this chapter, or in any franchises or franchise renewals granted under this chapter, shall be deemed to give any grantee of any such franchise or franchise renewal any right to occupy or use any poles, conduits, cables or any other property owned by the city or any public or private person or body, situate within any street or in any other place, without obtaining special permission therefor from the owner thereof or without paying such consideration or assuming such obligations therefor, or complying with such conditions, limitations, terms and restrictions as the owner thereof may impose or require, except to the extent the franchise or franchise renewal may expressly, clearly and specifically give such right with respect to specified property owned by the city.

(Prior code § 10125.12; Ord. 22101.)

The grantee shall have no recourse whatsoever against the city, its officers, employees or agents, for any loss, cost, expense or damage arising out of any provision or requirement of this chapter or of any franchise or franchise renewal issued under such chapter, or because of its enforcement.

(Prior code § 10125.10; Ord. 22101.)

The grantee shall indemnify, and shall agree to indemnify the city, its officers and employees against all claims, demands, actions, suits and proceedings by others, and against all liability to others, and against any loss, cost and expense resulting therefrom, including reasonable attorney's fees arising out of or resulting from the exercise of enjoyment of any franchise or franchise renewal or any act or omission of grantee with respect thereto, irrespective to the amount of the comprehensive liability insurance policy required under the provisions of this chapter.

(Prior code § 10125.14; Ord. 22101.)

This is and shall be of the essence of any franchise or franchise renewal granted under this chapter. The grantee shall comply, and shall not be relieved of his obligation to comply, promptly with each and every provision of this chapter and of the franchise or franchise renewal. He shall not be deemed relieved of such obligation by or because of the failure of the city to enforce prompt compliance.

(Prior code § 10125.8; Ord. 22101.)

A. Any cable system installed by the grantee pursuant to any franchise or franchise renewal shall be installed and maintained in accordance with the highest and best accepted standards of the industry so that subscribers shall receive the highest possible quality service. The cable system shall also meet any technical requirements for cable systems established by the Federal Communications Commission.

B. The grantee shall furnish and maintain such adequate, efficient, just and reasonable service, instrumentalities, equipment and facilities as are necessary to promote the safety, health, comfort and convenience of its subscribers, employees and the public.

C. The council shall have the right and power, to the extent permitted by applicable state and federal law, to establish such minimum standards as it may deem advisable for the above purposes, and grantee shall comply with them.

(Prior code § 10125.15; Ord. 22101.)

The grantee shall prepare and furnish to the city engineer, director of finance, city auditor and city manager, at the times and in the form prescribed by said officers, or prescribed in the franchise or franchise renewal agreement, such reports with respect to its operations, affairs, transactions or property as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the city or any of its officers in connection with the franchise.

(Prior code § 10125.17; Ord. 22101.)

Grantee shall maintain, on its premises, an accurate set of maps showing all cable system equipment installed in the streets of the city. Such plans shall be made available for inspection by city officials on request during normal business hours. Grantee shall furnish such other information relating to the construction and installation of the cable system as required by the franchise or franchise renewal agreement.

(Prior code § 10125.18; Ord. 22101.)

A. At all reasonable times, the grantee shall permit any duly authorized representative of the city engineer and/or the director of finance to examine all franchised property, together with any appurtenant property of the grantee situated within or without the city, and to examine and transcribe any and all maps and other records kept or maintained by the grantee or under its control which treat of the operations, affairs, transactions or property of the grantee with respect thereto. If any of such maps or records are not kept in the city, then upon request, they shall be made available in the city.

B. The grantee shall, at all times, make and keep in the city full and complete plans, maps and records showing the exact location of all cable system equipment installed or in use by grantee in the streets, alleys and public places of the city.

(Prior code § 10125.16; Ord. 22101.)

Property of the grantee shall be constructed or installed in streets, or in public service easements, only at such locations and in such manner as shall be approved by the city engineer of the city, acting in the exercise of reasonable discretion. Construction or installation of property of grantee in all other public places shall be subject to prior approval of and regulation of the city council.

(Prior code § 10125.19; Ords. 20183, 22101.)

In those areas or portions of the city where the transmission or distribution facilities of the public utility companies providing telephone service and electrical service are underground, or are hereafter required to be placed underground by the city, the grantee shall likewise construct, operate and maintain all transmission and distribution facilities underground. Amplifiers and couplings on the transmission and distribution lines may be constructed and maintained above-ground, if approved by the city engineer, in appropriate metal or concrete boxes or vaults as prescribed by the city engineer.

(Prior code § 10125.21; Ords. 20183, 22101.)

A. The grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the same street, alley or public property or place, or remove from any street, alley or public property or place, any of its property when required by the city engineer by reason of traffic conditions, public safety, street vacation, freeway or street construction, street widening, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines and tracks, or any other type of structures or improvements by the city or other governmental agencies when acting in a governmental or proprietary capacity, or any other structures or public improvements.

B. Upon failure of the grantee to commence, pursue or complete any work required by law or by the provisions of this chapter or by any franchise or franchise renewal to be done in any street, public place or public property within the time prescribed and to the satisfaction of the city engineer, the city engineer may, at his option, cause such work to be done, and the grantee shall pay to the city the costs thereof within thirty days after receipt of an itemized report of such costs from the city engineer.

(Prior code § 10125.22; Ord. 22101.)

In addition to other requirements of this chapter, the grantee of any franchise or franchise renewal granted under the provisions of this chapter shall do all things required of him by the provisions set forth in Sections 15.28.600 through 15.28.630, and otherwise comply with such provisions.

(Prior code § 10125.23; Ord. 22101.)

All distribution and other structures, lines, equipment and property erected or placed by the grantee within the city shall be so located as to cause no interference with proper use of streets, alleys and other public ways and property, and to cause no interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways or property.

(Prior code § 10125.23(a); Ord. 22101.)

If grantee disturbs any pavement, sidewalk, driveway or other surfacing, or other improvements within any streets, alleys or other public ways or other public property, the grantee shall, at its own cost and expense, replace and restore all paving, sidewalk, driveway or other surfacing or other improvements disturbed, in good condition as before said work was commenced, and to the satisfaction of the city engineer.

(Prior code § 10125.23(b); Ord. 22101.)

If at any time during the term of such franchise or franchise renewal the city elects to alter, change the grade of or construct any street, alley or other public way, or any public property, the grantee, upon reasonable notice by the city, shall remove and relocate its structures, lines and equipment, at its own cost and expense, to the extent the city deems such to be reasonably necessary for the above purpose.

(Prior code § 10125.23(c); Ord. 22101.)

The grantee shall, at the request of any person who holds a building moving permit issued by the city, temporarily remove, raise or lower its wires to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same.

(Prior code § 10125.23.(d); Ord. 22101.)

A. In the event the franchise or franchise renewal has been cancelled or terminated for any reason, or in the event the city council finds and determines that the use of any property of grantee has been abandoned for a period of six months, or in the event any property of grantee has been installed in any street or other public place without complying with the requirements of this chapter or the franchise granted by the city, then such property of grantee shall be promptly removed, other than that which the council may permit to be abandoned in place. In the event of any such removal, the grantee shall promptly restore the street or other area from which the property has been removed to a condition satisfactory to the city engineer.

B. Property of grantee to be abandoned in place shall be abandoned in such manner as the city engineer shall prescribe. Upon permanent abandonment of any such property in place, the grantee shall submit to the city manager an instrument, satisfactory to the city attorney, transferring to the city the ownership of such property.

(Prior code § 10125.20; Ord. 22101.)

A. The city council may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter.

B. The city manager is authorized and empowered to adjust, settle or compromise any controversy or charge arising from the operations of any grantee under this chapter, either on behalf of the city, the grantee, or any subscriber, in the best interest of the public. Either the grantee or any member of the public who may be dissatisfied with the decision of the city manager may appeal the matter to the council for hearing and determination. The council may accept, reject or modify the decision of the city manager, and the council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any grantee or from any provision of this chapter.

(Prior code § 10125.27; Ord. 22101.)

The power to amend any section or part of this chapter so as to require additional or greater standards of construction, operation, maintenance or otherwise, on the part of the grantee, is hereby expressly reserved to the city.

(Prior code § 10125.26; Ord. 22101.)

A. All notices required by the provisions of this chapter or of any franchise or franchise renewal, to be given by the city, or by its council or any officer, employee or agent of the city to the grantee or any of his assigns or successors, and all other notices which the city may give pursuant to this chapter or any franchise or franchise renewal, may be personally served, or may be given by ordinary United States mail, postage prepaid, addressed to grantee at his office in San José, the address of which shall be filed by grantee with the city clerk, or at the address given in the franchise or franchise renewal.

B. All notices required by the provisions of this chapter, or of any franchise or franchise renewal, to be given by grantee to the city, and all other notices which grantee may give to the city pursuant to this chapter or of any franchise or franchise renewal granted thereunder, shall be personally delivered to the city clerk in his office at the City Hall, or may be given by ordinary United States mail, postage prepaid, addressed to the city, care of the city clerk, City Hall, San José, California.

C. All documents and papers required to be filed with the city shall be filed with the city clerk in the city's City Hall.

(Prior code § 10125.29; Ord. 22101.)