South El Monte Municipal Code Ch. 5.20 Community Antenna Television System Franchises

For the purposes of this chapter, the following terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words used in the present tense include the future tense, words used in the plural number include the singular number, and words used in the singular number include the plural number.

"CATV"

means a community antenna television system as defined in this section.

"City"

means the city of South El Monte, a municipal corporation of the state of California, in its present incorporated form, or in any later reorganized, consolidated, enlarged or reincorporated form.

"Community antenna television system"

means a system of antennas, coaxial cables, wires, wave guides, or other conductors, equipment facilities designed, constructed or used for the purpose of providing television or FM radio service by cable or through its facilities as herein contemplated.

"Council"

means the present governing body of the city or any future board constituting the legislative body of the city.

"Facilities"

means all the property of the grantee, including service connections with the grantee's facilities, whether installed by the grantee or not, erected, constructed, laid, operated, or maintained in, upon, over, under, along or across any highway pursuant to any right or privilege granted by this franchise and/or license.

"Franchise"

means and includes any authorization granted under this chapter in terms of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a CATV system in the city. Any such authorization, in whatever term granted, does not mean or include any license or permit required for the privilege of transacting and carrying on a business within the city in accordance with Chapter 5.04 of this Code.

"Franchise area"

means the territory within the city throughout which the grantee shall be authorized to construct, maintain and operate its system, and shall include any enlargements thereof and additions thereto.

"Grantee"

means the person, firm or corporation to whom or which a franchise, as defined in this section, is granted by the council under this chapter, and the lawful successor, transferee or assignee of that person, firm or corporation.

"Person"

means any individual, firm, partnership, association, corporation, company or organization of any kind.

"Property of grantee"

means all property owned, installed or used by a grantee in the conduct of a CATV business in the city under the authority of a franchise granted pursuant to this chapter.

"Street"

means the surface of and the space above and below any public street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway or drive, now or hereafter existing as such within the city.

"Subscriber"

means any person or entity receiving for any purpose the CATV service of a grantee.

(Prior code §3-2-1)

A. When and in the event that the grantee of any franchise granted under this chapter constructs, operates and maintains a CATV system exclusively through telephone company facilities constructed, operated and maintained pursuant to a state-granted telephone franchise and offers satisfactory proof that in no event during the life of such franchise shall the grantee make any use of the streets independently of such telephone company facilities, the grantee shall be required to comply with all of the provisions of this chapter as a "licensee" and in such event whenever the term "grantee" is used in this chapter it shall be deemed to mean and include "licensee."

B. No provision of this chapter shall be deemed or construed as requiring the granting of a franchise under this chapter to a telephone company furnishing such a channel service unless the telephone company is, or becomes, an operator or one of the operators of a CATV system, in which case the telephone company shall be required to comply with this chapter in the same manner as any other person, firm or corporation operating such a system.

(Prior code §3-2-2)

A. A nonexclusive franchise to construct, operate and maintain a CATV system within all or any portion of the city may be granted by the council to any person, firm or corporation, whether operating under an existing franchise or not, who or which offers to furnish and provide such system under and pursuant to the terms and provisions of this chapter. Such a franchise shall not be exclusive, and the city reserves the right to grant a similar franchise to any person at any time.

B. No provision of this chapter may be deemed or construed as to require the granting of a franchise when in the opinion of the council it is in the public interest to restrict the number of grantees to one or more.

(Prior code §3-2-3)

A. Any franchise granted pursuant to the provisions 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 erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public street, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the CATV system; and in addition, so to use, operate and provide similar facilities or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other grantee franchised or permitted to do business in the city.

B. The grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable it to exercise its rights and perform its obligations under the franchise, and to ensure an uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions of this chapter or of the laws of the city, the state of California, or the United States of America.

C. The grantee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the city so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee, all trimming to be done under the supervision and direction of the city and at the expense of the grantee.

(Prior code §3-2-4)

A. The city council shall at all times and from time to time during the term of any franchise granted under this chapter have the power to and shall adopt and enforce, and the grantee shall conform to, rules and regulations of the council governing and establishing reasonable rules, regulations, and standards of performance pertaining to the system of the grantee.

B. The rates and charges proposed to be imposed initially upon subscribers for service by any prospective grantee shall be submitted to the city council with any application for a franchise. The actual initial rates to be charged shall be established by the city council and may be different from the rates proposed by any applicant. These rates, subject to being established by the city council, shall include, but not be limited to, the following: initial tap-in and connection charges and monthly service rates.

C. The city council shall have the power, authority, and right to cause the grantee's rates and charges to conform to the provisions of subsection C of Section 5.20.040, and for this purpose, it may deny increases or order reductions in such rates and charges when it deems that in the absence of such action on its part, the grantee's rates and charges or proposed increased rates and charges will not conform to subsection C of Section 5.20.040.

D. By its acceptance of this franchise the grantee specifically grants and agrees that its rates and charges to its subscribers for television and radio signals shall be fair and reasonable and no higher than necessary to meet all its necessary costs of service (assuming efficient and economical management), including a fair return on the original cost, less depreciation, of its properties devoted to such service (without regard to any subsequent sale or transfer price or cost of such properties).

E. By its acceptance of this franchise the grantee further specifically grants and agrees that the city council shall have the power, authority, and right to cause the grantee's rates and charges to conform to the provisions of subsection D of this section, and for this purpose the council may deny increases or order reductions in such rates and charges when it determines in the absence of such action on its part, that the grantee's rates and charges or proposed increased rates and charges will not conform to the provisions of subsection D of this section.

F. However, no action shall be taken by the city council with respect to the grantee's rates under this section until the grantee has been given reasonable notice thereof and an opportunity to be heard by the council with regard thereto.

G. The rates and charges proposed to be imposed initially upon subscribers for service by any prospective franchise shall be submitted to the city council; with any application for a franchise. The actual interest rates to be charged as well as subsequent rates in accordance with subsection C of Section 5.20.040 shall, however, be established by the city council and may be different from the rates proposed by any applicant. These rates, subject to being established by the city council, shall include but not be limited to, the following: initial tap-in and connection charges and monthly service rates.

H. The grantee shall receive no deposit, advance payment, or penalty from any subscriber or potential subscriber without approval of the council.

I. The grantee shall receive no consideration whatsoever for or in connection with its service to its subscribers other than in accordance with this section.

J. If in the future, the state of California regulates the rates of the grantee for the service provided for in this franchise, this section shall be of no effect during such state regulation to the extent of any conflict therewith.

(Prior code §3-2-5)

If any subscriber of the grantee of less than three years terminates service because of the grantee's failure to render service to such subscriber of any type and quality provided for in this chapter, or if service to any subscriber of less than three years is terminated without good cause or because the grantee ceases to operate the CATV business authorized in this chapter for any reason, except expiration of this franchise, the grantee shall refund to such subscriber an amount equal to the initial tap-in and connection charges paid by him or her divided by thirty-six and multiplied by a number equal to thirty-six minus the number of months the subscriber has been on the system.

(Prior code §3-2-7)

A. No franchise granted by the council under this chapter shall be for a term longer than twenty years following the date of acceptance of the franchise by the grantee or the renewal thereof.

B. Any franchise granted under this chapter may be terminated prior to its date of expiration by the council in the event that the council finds, after thirty days' notice of any proposed termination and public hearing, that:

1. The grantee has failed to comply with any provision of this chapter or has, by act or omission, violated any term or condition of any franchise or permit issued under this chapter; or

2. Any provision of this chapter has become invalid or unenforceable and the council further finds that such provision constitutes a consideration material to the grant of the franchise; or

3. The city acquires the CATV system property of the grantee; or

4. The grantee attempts to dispose of any of the facilities or property of its CATV business to prevent the city from purchasing the same, as provided for in this chapter; or

5. The grantee attempts to evade any of the provisions of this franchise, or practices any fraud or deceit upon the city; or

6. The grantee's application, including accompanying reports or data, contains a material misrepresentation, whether intentional or not.

C. Any franchise granted under this chapter may be terminated prior to its date of expiration by resolution or ordinance of the council without previous notice or hearing in the event that the grantee should: Make a general assignment for the benefit of creditors, or file a petition or proceeding in bankruptcy, including a request for a type of reorganization or composition proceeding under the federal bankruptcy laws, or file a voluntary petition or proceeding under any insolvency laws, in any of which events termination may be had forthwith; have a receiver appointed to operate either its entire business or any portion thereof within the city; or be adjudged a bankrupt or placed in reorganization or composition proceedings under the federal bankruptcy laws pursuant to or as a consequence of any petition by creditors, and in any of these events shall fail to remove the same or the effect thereof within thirty days.

(Prior code §3-2-8)

A. Any grantee granted a franchise under this chapter shall pay to the city, during the life of the franchise, a sum equal to three percent of the gross annual receipts of the grantee, unless the grantee services less than one thousand subscribers, in which event the grantee shall pay to the city five percent of the gross annual receipts of the grantee. Such payment by the grantee to the city shall be made annually, or as otherwise provided in the grantee's franchise, by delivery of the same to the director of finance. The city council reserves the right to increase the rates from time to time, if permitted by applicable state law and rules and regulations of the Federal Communications Commission.

B. The grantee shall file with the city, within thirty days after the expiration of any calendar year or portion thereof during which the franchise is in force, a financial statement prepared by a certified public accountant, or person otherwise satisfactory to the council, showing in detail the gross annual receipts, as defined in this chapter, of the grantee during the preceding calendar year or portion thereof. It shall be the duty of the grantee to pay to the city, within fifteen days after the time for filing such statements, the sum hereinafter prescribed or any unpaid balance thereof for the calendar year or portion thereof covered by such statements.

C. In any year, or portion thereof, following the first full year service has been provided and during which payments under this section amount to less than twelve hundred dollars per year, the grantee shall pay to the city a minimum of one thousand two hundred dollars per year.

D. The city shall have the right to inspect the grantee's records showing the gross receipts from which its franchise payments are computed and the right of audit and recomputation of any and all amounts paid under this chapter. No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the city may have for further and additional sums payable under this chapter or for the performance of any other obligation under this chapter.

E. In the event of any holding over after the expiration or other termination of any franchise granted under this chapter without the consent of the city, the grantee shall pay to the city reasonable compensation and damages of not less than one hundred percent of its total gross receipts during said period.

(Prior code §3-2-9)

A. Any franchise granted under this chapter shall be nonexclusive.

B. No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those specifically prescribed in this chapter.

C. Any privilege claimed under any franchise by the grantee in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property.

D.

1. The following transactions involving any franchise granted hereunder, or involving any grantee of a franchise hereunder, shall require the prior consent of the city council expressed by resolution, and then only under such conditions as may therein be prescribed:

a. The sale, transfer, lease, assignment or other disposition of the franchise, in whole or in part, whether voluntary or involuntary; provided, however, that such consent shall not be required for a transfer in trust, mortgage or other hypothecation for the purpose of securing an indebtedness of the grantee. A transfer, assignment or other disposition hereunder shall be made only by an instrument in writing, a duly executed copy of which shall be filed in the office of the city clerk within thirty days after such transfer, assignment or other disposition.

b. Any merger, consolidation, reorganization, business combination, or other transaction wherein fifty percent or more of the ownership interests in the grantee will be affected and control of the grantee will change or be subject to change. As used herein, "control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the grantee. A duly executed copy of a written instrument evidencing the closing and consummation of any such transaction shall be filed in the office of the city clerk within thirty days after the closing of such transaction.

2. The consent of the city council to a transaction specified herein shall not be unreasonably with-held; provided, however, that any entity or person acquiring a franchise by transfer, assignment or other disposition, and any entity or person acquiring fifty percent or more of the ownership interests in a grantee, shall demonstrate financial responsibility and shall agree to comply with all provisions of this chapter.

3. A request for city council consent to a transaction specified herein shall be accompanied by a fee of five hundred dollars to assist in defraying the city's investigation and administrative expenses relating thereto.

E. Time shall be of the essence of any such franchise granted under this chapter. The grantee shall not be relieved of his or her obligation to comply promptly with any of the provisions of this chapter or by any failure of the city to enforce prompt compliance.

F. Any right or power in, or duty 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.

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

H. The grantee shall be subject to all requirements of city ordinances, rules, regulations and specifications heretofore or hereafter enacted or established.

I. The grantee shall, at all times during the life of this franchise, be subject to all lawful exercise of the police power by the city and to such reasonable regulation as the city shall hereafter provide.

J. Any such franchise granted shall not relieve the grantee of any obligation involved in obtaining pole space from any department of the city utility company, or from others maintaining poles in the streets.

K. Any franchise granted under this chapter shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled or exercisable by the grantee, or any successor to any interest of grantee, of or pertaining to the construction, operation or maintenance of any CATV system in the city; and the acceptance of any franchise under this chapter shall operate, as between the grantee and the city, as an abandonment of any and all such rights, privileges, powers, immunities and authorities within the city, to the effect that, as between the grantee and the city, any and all construction, operation and maintenance by any grantee of any CATV system in the city shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to said franchise, and not under or pursuant to any other right, privilege, power, immunity or authority whatsoever.

(Prior code §3-2-10; Ord. 819-U §1, 1988)

A. Nothing in this chapter shall be deemed or construed to impair or affect, in any way, to any extent, the right of the city to acquire the property of the grantee, either by purchase or through the exercise to the right of eminent domain, upon payment of reasonable compensation therefor. In either event, the compensation shall be determined as provided in Title 7, Chapter 9, Article 4 of the Code of Civil Procedure of the state of California; provided, however, that the grantee shall in no event be compensated for loss of goodwill nor shall any such compensation include any valuation for the franchise itself or any of the rights or privileges granted by the franchise. Nothing contained in this chapter shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the city's right of eminent domain.

B. There is reserved to the city every right and power which is required to be in this chapter reserved or provided by any ordinance of the city, and the grantee, by its acceptance of any franchise, agrees to be bound thereby and to comply with any action or requirements of the city in its exercise of such rights or power, heretofore or hereafter enacted or established.

C. Neither the granting of any franchise under this chapter nor any of the provisions of this chapter shall be construed to prevent the city from granting any identical, or similar, franchise to any other person, firm or corporation, within all or any portion of the city.

D. There is reserved to the city 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.

E. Neither the granting of any franchise nor any provision of this chapter shall constitute a waiver or bar to the exercise of any governmental right or power of the city.

F. The council may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter and may determine any question of fact which may arise during the existence of any franchise granted under this chapter. The city administrator 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. Either the grantee or any member of the public who may be dissatisfied with the decision of the city administrator may appeal the matter to the council for hearing and determination. The council may accept, reject or modify the decision of the city administrator, and the council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of the grantee or from any provision of this chapter.

G. In connection with the issuance of any franchise under this chapter, the city council may impose such reasonable restrictions, conditions and limitations as to the area or areas of the city to be served by the franchise holder, operating conditions and cooperative working arrangements relative to local television broadcasting stations serving the city, with the best possible reception. However, every proposal shall include the entire city.

H. The city shall have the right to supervise all construction or installation work performed subject to the provisions of this franchise and make such inspections as it shall find necessary to ensure compliance with the terms of this franchise and other pertinent provisions of the law.

I. The city shall have the right to specify the methods and materials of construction, together with the horizontal and vertical location of any facility proposed by the grantee within any public property or right-of-way. Methods of construction shall include the city's right to limit the work of the grantee to ensure a minimum of inconvenience to the travelling public. The city reserves the right to construct such portions of the grantee's proposed facilities and equipment as public safety and convenience may dictate, at the grantee's sole expense.

J. The grantee shall provide service to public school locations and teaching stations within the city for educational purposes upon request by the city and at no cost to it or to the public school system. The grantee may at its election provide similar services without cost to private schools, including parochial or other religious schools. City buildings shall be provided service upon request of the city council, and there shall be no charge for such installation and service.

K. In the case of any emergency or disaster, the grantee shall, upon request of the city council, make available its facilities to the city for emergency use during the emergency or disaster period.

(Prior code §3-2-11; Ord. 809 §1, 1987)

A. Within sixty days after the acceptance of any franchise the grantee shall apply for all permits now or hereafter required of any person, firm, or corporation before performing any work under this franchise and shall pay all inspection and permit fees applicable to any such work or operation. All work shall be performed in a good and workmanlike manner (and so as not to interfere with other forms of communication such as telephone, radio and television) and pursuant to all ordinances, rules and regulations of the city and all other governmental agencies having lawful jurisdiction with the city over such work or operation.

B. Within sixty days after acceptance of any franchise the grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, any utility joint use attachment agreements, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of CATV systems, or their associated microwave transmission facilities.

C. Within ninety days after obtaining all necessary permits, licenses and authorizations, the grantee shall commence construction and installation of the CATV system.

D. Within ninety days after the commencement of the construction and installation of the system, the grantee shall proceed to render service to subscribers, and the completion of the construction and installation shall be pursued with reasonable diligence thereafter, so that service to all areas designated on the map accompanying the application for franchise, as provided in Section 5.20.250, shall be provided within one year from the date that service was first provided.

E. Failure on the part of the grantee to commence and diligently pursue each of the foregoing requirements and to complete each of the matters set forth in this section, shall be grounds for termination of the franchise, under and pursuant to the terms of Section 5.20.070; provided, however, that the council in its discretion may extend the time for the commencement and completion of construction and installation for additional periods in the event the grantee, acting in good faith, experiences delays by reason of circumstances beyond his or her control.

(Prior code §3-2-12)

A. Any poles, wires, cable lines, conduits or other properties of the grantee to be constructed or installed in streets, shall be so constructed or installed only at such locations and in such manner as shall be approved by the public works coordinator acting in the exercise of his or her reasonable discretion.

B. The grantee shall not install or erect any facilities or apparatus, in or on other public property, places or rights-of-way, or within any privately owned area within the city which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the city, except those installed or erected upon public utility facilities now existing.

C. In those areas and portions of the city where the transmission or distribution facilities of both the public utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, then the grantee shall likewise construct, operate and maintain all of its transmission and distribution facilities underground. For the purposes of this subsection, "underground" shall include a partial underground system, e.g., streamlining. Amplifiers in the grantee's transmission and distribution lines may be in appropriate housings upon the surface of the ground as approved by the city administrator.

D. No poles or other wire-holding structures shall be erected by the grantee.

E. Where poles or other wire-holding structures already existing for use in serving the city are available for use by the grantee, but it does not make arrangements for such use, the city council may require the grantee to use such poles and structures if it determines that the public convenience would be enhanced thereto and the terms of the use available to the grantee are just and reasonable.

F. Where the city or a public utility serving the city desires to make use of the poles or other wire-holding structures of the grantee but agreement therefor with the grantee cannot be reached, the city council may require the grantee to permit such use for such consideration and upon such terms as the council shall determine to be just and reasonable, if the council determines that the use would enhance the public convenience and would not unduly interfere with the grantee's operations.

G. Notwithstanding any of the subsections of this section, the city council may require in the grant of the franchise that certain facilities be installed underground, at the sole obligation of and at the sole expense of the grantee.

H. It is the intent of the city that the grantee shall construct, install and maintain its poles, wires, cable lines, conduits and other similar facilities underground. The public works coordinator shall have the responsibility to recommend any deviations from this undergrounding policy, and the city council shall approve or disapprove any request for deviation from such policy.

(Prior code §3-2-13)

A. In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of twelve months, or in the event such system or property has been installed in any street or public place without complying with the requirements of the grantee's franchise or this chapter, or the franchise has been terminated, cancelled or has expired, the grantee shall promptly, upon being given ten days' notice, remove from the streets or public places all such property and poles of such system other than any which the public works coordinator may permit to be abandoned in place. In the event of such removal, the grantee shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the public works coordinator.

B. Any property of the grantee remaining in place thirty days after the termination or expiration of the franchise shall be considered permanently abandoned. The city administrator may extend such time not to exceed an additional thirty days.

C. Any property of the grantee to be abandoned in place shall be abandoned in such a manner as the public works coordinator shall prescribe. Upon permanent abandonment of the property of the grantee in place, the property shall become that of the city, and the grantee shall submit to the public works coordinator an instrument in writing, to be approved by the city attorney, transferring to the city the ownership of such property.

(Prior code §3-2-14)

A. The grantee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other public place, or remove from the street or other public place any property of the grantee when required by the city administrator by reason of traffic conditions, public safety, street vacation, freeway and street construction, 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 public agencies; provided, however, that the city administrator may permit the grantee to abandon any property of the grantee in place, as provided in Section 5.20.130 if he or she finds such abandonment to be in the best interests of the city.

B. All transmission and distribution structures, lines and equipment erected by the grantee within the city shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who join any of the streets, alleys or other public ways and places.

C. In case of disturbance in any street, sidewalk, alley, public way or paved area, the grantee shall, at its own cost and expense, and in a manner approved by the city administrator, replace and restore such street, sidewalk, alley, public way or paved area in as good a condition as before the work involving such disturbance was done.

D. If at any time during the period of this franchise the city shall lawfully elect to alter or change the grade of any street, sidewalk, alley or other public way, the grantee, upon reasonable notice by the city, shall remove, relay, and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.

E. Any poles or other fixtures placed in any public way by the licensee shall be placed in such a manner as not to interfere with the usual travel on such public way.

F. The grantee shall, on the request of any person holding a building moving permit issued by the city, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than forty-eight hours' advance notice to arrange for such temporary wire changes.

(Prior code §3-2-15)

A. Upon failure of the grantee to commence, pursue, or complete any work required by law or by the provisions of this chapter or by its franchise to be done in any street or other public place, within the time prescribed, and to the satisfaction of the city administrator, the city administrator may at his or her option, cause such work to be done and the grantee shall pay to the city the cost thereof in the itemized amounts reported by the city administrator to the grantee within thirty days after receipt of such itemized report.

B. "Cost," as used in subsection A of this section, shall include fifteen percent of other costs for the city's overhead.

(Prior code §3-2-16)

A. On or before the effective date of the ordinance granting the franchise, the grantee shall file and there-after at all times during the term of the franchise shall keep on file with the city clerk a corporate surety bond running to the city in the sum of fifty thousand dollars, conditioned that grantee shall observe, fulfill and perform each condition of the franchise and that in case of any breach of the provisions of this chapter or of the terms of the franchise issued to grantee under this chapter, there shall be recoverable, jointly and severally, from the principal and surety of such bond any damages or loss incurred by the city as a consequence thereof, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond. The condition shall be a continuing obligation for the term of the franchise and any renewal thereof. The bond shall provide that thirty days' prior written notice be given to the city manager of any reduction in coverage, cancellation or nonrenewal of the bond.

B. Neither the provisions of this section, nor any bond filed with the city pursuant to this chapter, nor any damages recovered by the city thereunder, shall be construed to excuse faithful performance by the grantee nor limit the liability of the grantee under any franchise granted under this chapter or for damages, either to the full amount of the bond or otherwise.

(Prior code §3-2-17; Ord. 809 §2, 1987)

A. The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, furnish to the city and file with the city clerk, and at all times during the existence of any franchise granted under this chapter, maintain in full force and effect, at its own cost and expense, a liability insurance policy in the amount of one million dollars, in a company approved by the city administrator and in a form satisfactory to the city attorney, indemnifying and saving harmless the city, its officers and employees from and against any and all claims, demands, actions, suits and proceedings by others, against all liability to others, including but not limited to any liability for damages by reason of or arising out of any failure by the grantee to secure consents from owners, authorized distributors or licensees of programs to be delivered by the grantee's CATV system and against any loss, cost, expense and damages resulting therefrom, including reasonable attorney's fees, arising out of the exercise or enjoyment of its franchise, irrespective of the amount of the comprehensive liability insurance policy required under this chapter.

B. The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, furnish to the city and file with the city clerk, and at all times during the existence of any franchise granted under this chapter, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, in protection of the city, its officers, boards, commissions, agents and employees, in a company approved by the city administrator and in a form satisfactory to the city attorney, protecting the city and all persons against liability for loss or damage for personal injury, death and property damage, occasioned by the operations of the grantee under such franchise, with minimum liability limits of one million dollars for personal injury or death of any one person and three million dollars for personal injury or death of two or more persons in any one occurrence, and one hundred thousand dollars for damage to property resulting from any one occurrence.

C. The policies mentioned in subsection B of this section shall name the city, its officers, boards, commissions, agents and employees as additional insureds and shall contain a provision that a written notice of cancellation or reduction in coverage of the policy shall be delivered to the city thirty days in advance of the effective date thereof; if such insurance is provided by a policy which also covers the grantee or any other entity or person other than those named above, then such policy shall contain the standard cross-liability endorsement.

(Prior code §3-2-18)

A. At all reasonable times, the grantee shall permit any duly authorized representative of the city to examine all property of the grantee, 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 deal with the operations, affairs, transactions or property of the grantee with respect to its franchise. If any such maps or records are not kept in the city, or upon reasonable request made available to the city, and if the council shall determine that an examination thereof is necessary or appropriate, then all travel and maintenance expenses necessarily incurred in making such examination shall be paid by the grantee.

B. The grantee shall prepare and furnish to the city administrator and the city clerk at the times and in the form prescribed by either of said officers, 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.

C. The grantee shall at all times make and keep in the city full and complete plans and records showing the exact location of all CATV system equipment installed in or in use in the streets and other public places in the city.

D. The grantee shall file with the city administrator, on or before the last day of March of each year, a current map or set of maps drawn to scale, showing all CATV system equipment installed and in place in streets and other public places in the city.

E. Copies of all petitions, applications and communications submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting CATV operations authorized pursuant to this franchise, shall also be submitted simultaneously to the city council.

(Prior code §3-2-19)

A. The CATV system shall be installed and maintained in accordance with the highest and best accepted standards of the industry to the effect that subscribers shall receive the highest possible service. In determining the satisfactory extent of such standards, the following among others shall be considered:

1. That the system be installed using all-band equipment capable of passing the entire VHF and FM spectrum, and that it shall have the further capability of converting UHF for distribution to subscribers on the VHF band.

2. That the system, as installed, shall be capable of passing standard color television signals without the introduction of material degradation on color fidelity and intelligence, and when the signals the grantee distributes are received from a station which is transmitting in color, they shall be distributed in color when technically feasible.

3. That the system and all equipment shall be designed and rated for twenty-four-hour-per-day continuous operation.

4. That the system shall provide nominal signal level of two thousand microvolts at the input terminals of each television receiver.

5. That the system signal-to-noise ratio is not less than forty decibels.

6. That the system use components having a VSWR of 1.4 or less.

7. That hum modulation of the picture signal is less than five percent.

8. Produce a picture that is undistorted, free from ghost images, and accompanied with proper sound on typical standard production television sets in good repair, and as good as the state of the art allows.

9. Limit failures to a minimum by locating and correcting malfunctions promptly, but in no event longer than twenty-four hours after notice.

10. The grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible; such interruptions, insofar as possible, shall be preceded by notice to both the city and all subscribers affected and shall occur during periods of minimum use of the system.

11. The grantee's cable distribution system shall be capable of carrying all UHF and VHF television channels in the area, present and future. Further, the grantee shall make available upon request of the city council one channel for educational television and one channel for other noncommercial service for the benefit of the inhabitants of the city.

B. In the event of a suspected violation of any of the requirements of subsection A of this section, the city shall give written notice to the grantee at its address on file with the city. Within ten days thereafter, the grantee shall provide the city with a written report stating whether or not in the grantee's opinion any violation existed and the remedial steps taken or to be taken. If the city administrator is not satisfied with any claim of no violation, the city may obtain an independent expert to investigate and report upon the suspected violation, whereupon, subject to review by the council under subsection F of Section 5.20.100, the city administrator shall determine whether a violation exists. Upon such a determination that a violation exists, or upon a similar determination by the council, the grantee shall forthwith pay to the city the fees and costs of such expert and shall proceed with all diligence to forthwith remedy the violation. Failure to do so within thirty days following the receipt of billing from the city by the grantee shall be cause for cancellation of the grantee's franchise under Section 5.20.070.

(Prior code §3-2-20)

A. Neither the grantee under this chapter nor any shareholder of the grantee shall engage in the business of selling, repairing or installing television receivers, radio receivers, or accessories for such receivers within the city during the term of this franchise and the grantee shall not allow any of its shareholders to so engage in any such business.

B. This franchise authorizes only the operation of a CATV system as provided for in this chapter and does not take the place of any other franchise, license or permit which might be required by law of the grantee.

(Prior code §3-2-21)

A. The grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public.

B. The grantee shall install and maintain its wires, cables, fixtures and other equipment in accordance with the requirements of the National Electrical Code, and in such manner that they will not interfere with any installations of the city or of a public utility serving the city.

C. All structures and all lines, equipment and connection in, over, under, and upon the streets, sidewalks, alleys and public ways and places of the city, wherever situated or located, shall at all times be kept and maintained in a safe, suitable, substantial condition and in good order and repair.

D. The grantee shall maintain a force of one or more resident agents or employees at all times during the construction and installation of the system, such construction and installation having commenced as in subsection D of Section 5.20.110 and being completed as provided in that section. Such agents or employees shall provide for safe, orderly and workmanlike construction and installation of the system and shall be available to answer service calls or complaints during the period.

(Prior code §3-2-22)

It shall be the policy of the city liberally to amend this franchise, upon application of the grantee, when necessary, to enable the grantee to take advantage of any developments in the field of transmission of television and radio signals which will afford it more effectively, efficiently or economically to serve its customers. Provided, however, that this section shall not be construed to require the city to make any amendment or to prohibit it from unilaterally changing its policy stated in this chapter.

(Prior code §3-2-23)

A. When not otherwise prescribed, all matters in this section required to be filed with the city shall be filed with the city clerk.

B. The grantee shall pay to the city a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise pursuant to the provisions of this chapter. Such payment shall be made within thirty days after the city furnishes the grantee with a written statement of such expenses by delivery of the same to the director of finance.

C. Grantee shall maintain an office within the city limits in which grantee shall provide customer services, including but not limited to accepting payments for cable service, and to which subscribers may call to make inquiries, lodge complaints, or report problems regarding quality of service, equipment malfunctions, billing questions, and similar matters during normal business hours. In addition, a toll-free telephone number shall be available to all subscribers located within the franchise area for the reporting of service problems on a twenty-four hours per day, seven days per week, three hundred sixty-five days per year basis.

D. No person, firm or corporation in the existing service area of the grantee shall be arbitrarily refused service; provided, however, that the grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or monthly service charge.

E. Any CATV system existing in the city prior to the effective date of this chapter shall, within sixty days after the effective date of this chapter make application for a franchise. The system may continue its existing operations but may not enlarge or expand the same without first securing a franchise from the city.

F. Grantee shall make available the studio located in Covina for community television production on a first come, first serve basis to public access users, community organizations and volunteers in South El Monte.

G. Grantee, in conjunction with the city, shall identify and provide coverage of a minimum of four community events on an annual basis.

H. Grantee shall provide, upon request, premium service to the Pete Schrabarum Senior Citizens Center at cost to the center and to South El Monte Fire Station at cost to the station.

I. Grantee shall, by September 30, 1988, or such later date as may be expressly approved by the city council, enlarge or expand the CATV system so as to make service available to any residence located in the 1800 block of North Tyler Avenue.

(Prior code §3-2-24; Ord. 809 §§3, 4, 1987)

When any portion of the CATV system is to be installed on public utility poles and facilities, certified copies of the agreements for such joint use of poles and facilities shall be filed with the city clerk.

(Prior code §3-2-25)

A. Application for a franchise under this chapter shall be in writing, shall be filed with the city clerk, and shall contain the following information:

1. The name and address of the applicant. If the applicant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application shall also state the names and addresses of its directors, main offices, major shareholders and associates, and the names and addresses of parent and subsidiary companies.

2. A statement and description of the CATV system proposed to be constructed, installed, maintained or operated by the applicant; the proposed location of such a system and its various components; the manner in which the applicant proposes to construct, install, maintain and operate the same; and, particularly, the extent and manner in which existing or future poles or other facilities of other public utilities will be used for such system.

3. A description, in detail, of the public streets, public places and proposed public streets within which the applicant proposes or seeks authority to construct, install or maintain any CATV equipment or facilities proposed to be constructed, installed or maintained therein; and the proposed specific location thereof.

4. A map specifically showing and delineating the proposed service area or areas within which the applicant proposes to provide CATV services and for which a franchise is requested.

5. A statement or schedule in a form approved by the city administrator of proposed rates and charges to subscribers for installation and services, and a copy of the proposed service agreement between the grantee and its subscribers shall accompany the application. For unusual circumstances, such as more than one hundred fifty feet of distance from cable to connection of service to subscribers, an additional installation charge over that normally charged for installation as specified in the applicant's proposal may be charged, with easements to be supplied by subscribers. For remote, relatively inaccessible subscribers within the city, service may be made available on the basis of cost of materials, labor, and easements if required by the grantee.

6. A copy of any contract, if existing, between the applicant and any public utility providing for the use of facilities of such public utility, such as poles, lines or conduits.

7. A statement setting forth all agreements and understandings, whether written, oral or implied, existing between the applicant and any person, firm or corporation with respect to the proposed franchise or the proposed CATV operation. If a franchise is granted to a person, firm or corporation posing as a front or as the representative of another person, firm or corporation, and such information is not disclosed in the original application, such franchise shall be deemed void and of no force and effect whatsoever.

8. A financial statement prepared by a certified public accountant, or person otherwise satisfactory to the council, showing the applicant's financial status and his or her financial ability to complete the construction and installation of the proposed CATV system.

9. The council may at any time demand, and the applicant shall provide, such supplementary, additional or other information as the council may deem reasonably necessary to determine whether the requested franchise should be granted.

B. Upon consideration of the application, the council may refuse to grant the requested franchise or the council may by ordinance grant a franchise for a CATV system to any such applicant as may appear from the application to be in its opinion to be the best qualified to render proper and efficient CATV service to television viewers and subscribers in the city. The council's decision in the matter shall be final. If favorably considered, the application shall constitute and form part of the franchise as granted.

C. Any franchise granted pursuant to this chapter shall include the following condition:

The CATV system herein franchised shall be used and operated solely and exclusively for the purpose expressly authorized by Ordinance of the city of South El Monte and no other purpose whatsoever.

(Prior code §3-2-26)

Any franchise granted under this chapter is renewable at the application of the grantee, in the same manner and upon the same terms and conditions as required in this chapter for obtaining the original franchise except those which are by their terms expressly inapplicable; provided, however, that the council may at its option waive compliance with any or all of the requirements of Section 5.20.250.

(Prior code §3-2-27)

A. No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance granting the same has become effective and, in addition, unless and until all things required in this section and Section 5.20.160 and subsections A and B of Section 5.20.170 are done and completed, all of these things being declared to be conditions precedent to the effectiveness of any franchise granted under this chapter. In the event any of these things are not done and completed in the time and manner required, the council may declare the franchise null and void.

B. Within thirty days after the effective date of the ordinance awarding a franchise, or within such extended period of time as the council in its discretion may authorize, the grantee shall file with the city clerk his or her written acceptance, in form satisfactory to the city attorney, of the franchise, together with the bond and insurance policies required by Section 5.20.160 and subsections A and B of Section 5.20.170 of this chapter, respectively, and his or her agreement to be bound by and to comply with and to do all things required of him or her by the provisions of this chapter and the franchise. Such acceptance and agreement shall be acknowledged by the grantee before a notary public and shall be in form and content satisfactory to and approved by the city attorney.

(Prior code §3-2-28)

A. Fee for Support of Local Cable Usage. A fee paid to the city is established for the support of public, educational and governmental access facilities and activities within the local franchise service area. Unless a higher percentage is authorized by applicable state or federal law, this fee shall be one percent of a state video holder's gross revenue, as defined in California Public Utilities Code Section 5860.

B. Franchise Fee. A state video franchise holder operating in the city shall pay to the city a franchise fee that is equal to five percent of the gross revenues of that state video franchise holder. The term "gross revenues" shall be defined as set forth in Public Utilities Code Section 5860.

C. Audit Authority. Not more than once annually, the city may examine and perform an audit of the business records of a holder of a state video franchise to ensure compliance with all applicable statutes and regulations related to the computation and payment of franchise fees.

D. Customer Service Penalties Under State Video Franchises.

1. The holder of a state video franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.

2. The city shall monitor a state video franchise holder's compliance with state and federal customer service and protection standards. The city will provide to the state video franchise holder written notice of any material breaches of applicable customer service and protection standards and will allow the state video franchise holder thirty days from receipt of the notice to remedy the specified material breach. Material breaches not remedied within this thirty-day time period will be subject to the following monetary penalties to be imposed by the city in accordance with state law:

a. For the first occurrence of a violation, a monetary penalty of five hundred dollars shall be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars for each violation.

b. For a second violation of the same nature within twelve months, a monetary penalty of one thousand dollars shall be imposed for each day the violation remains in effect, not to exceed three thousand dollars for each violation.

c. For a third or further violation of the same nature within twelve months, a monetary penalty of two thousand five hundred dollars shall be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars for each violation.

3. A state video franchise holder may appeal a monetary penalty within sixty days after it is assessed by the city. After relevant evidence and testimony is received, and staff reports are submitted, the city council will vote to either uphold or vacate the monetary penalty. The city council's decision on the imposition of a monetary penalty shall be final.

E. City Response to State Video Franchise Applications.

1. Applicants for state video franchises within the boundaries of the city must concurrently provide to the city complete copies of any application or amendments to applications filed with the California Public Utilities Commission. One complete copy must be provided to the city manager.

2. The city will provide any appropriate comments to the California Public Utilities Commission regarding an application or an amendment to an application for a state video franchise.

F. PEG Channel Capacity. A state video franchise holder that uses the public rights-of-way shall designate sufficient capacity on its network to enable the carriage of at least three public, educational or governmental (PEG) access channels.

1. PEG access channels shall be for the exclusive use of the city or its designees to provide public, educational or governmental programming.

2. Advertising, underwriting or sponsorship recognition may be carried on the PEG access channels for the purpose of funding PEG-related activities.

3. The PEG access channels shall be carried on the basic service tier.

4. To the extent feasible, the PEG access channels shall not be separated numerically from other channels carried on the basic service tier, and the channel numbers for the PEG access channels shall be the same channel numbers used by the incumbent cable operator unless prohibited by federal law.

5. After the initial designation of PEG access channel numbers, the channel numbers shall not be changed without the prior written consent of the city, unless the change is required by federal law.

6. Each PEG access channel shall be capable of carrying a National Television System Committee (NTSC) television signal.

G. Interconnection. Where technically feasible, a state video franchise holder and incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG access channel programming. Interconnection may be accomplished by direct cable, microwave link, satellite, or other reasonable method of connection. State video franchise holders and incumbent cable operators shall provide interconnection of the PEG access channels on reasonable terms and conditions and may not withhold the interconnection. If a state video franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the city may require the incumbent cable operator to allow the state video franchise holder to interconnect its network with the incumbent's network at a technically feasible point on the holder's network as identified by the holder. If no technically feasible point for interconnection is available, the state video franchise holder shall make an interconnection available to the channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state video franchise holder requesting the interconnection unless otherwise agreed to by the parties.

H. Emergency Alert System and Emergency Overrides. A state video franchise holder must comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the holder's network. Provisions in city-issued franchises authorizing the city to provide local emergency notifications shall remain in effect and shall apply to all state video franchise holders in the city for the duration of the city-issued franchise, or until the term of the franchise would have expired had it not been terminated pursuant to subdivision (m) of Section 5840 of the California Public Utilities Code, or until January 1, 2009, whichever is later.

I. Encroachment Permit Applications and Appeal Procedures.

1. As used in this subsection, the term "encroachment permit" means any permit issued by the city relating to construction or operation of facilities in public rights-of-way by the holder of a state video franchise.

2. The city shall either approve or deny an application from a holder of a state video franchise for an encroachment permit within sixty days of receiving a completed application.

3. If the city denies an application for an encroachment permit, the city shall, at the time of notifying the applicant of the denial, furnish to the applicant written notice of the reason for the denial. An applicant may appeal the city's denial of an encroachment permit application to the city council in accordance with the following procedures:

a. No notice of appeal will be processed unless filed within ten days after service of written notice of the decision from which the appeal is taken; provided, that, if written notice of the decision has not been served, the appellant may, within ten days after being apprised of that decision, demand service of written notice and will have ten days following that service in which to file the notice of appeal.

b. The notice of appeal must specify the specific decision from which the appeal is taken, the specific grounds for the appeal, and the relief or action requested from the city council.

c. The notice of appeal must be accompanied by such fee as may have been established by resolution of the city council.

d. Upon the timely filing of a notice of appeal in proper form, the city clerk will schedule the matter for hearing by the city council at a regular meeting, but not later than forty-five days after receipt of the notice of appeal. The city clerk will cause the notice of hearing to be given to the appellant not less than ten days prior to the hearing unless that notice is waived in writing by the appellant. The city clerk will also cause a copy of the notice of appeal and the hearing to be transmitted to the city official or body whose decision is being appealed.

e. At the time of consideration of the appeal by the city council, the appellant will be limited to a presentation on the specific grounds of appeal and related matters set forth in its notice of appeal. The appellant will have the burden of persuading the city council that the decision appealed from should be reversed or modified.

f. The city council may continue the hearing on the appeal from time to time as may be deemed necessary. The city council may, by resolution, affirm, reverse, or modify, in whole or in part, the decision appealed from and may take any action that might have been taken in the first instance by the city official or body from whose decision the appeal has been taken.

g. The decision of the city council will be deemed final and conclusive upon adoption of the resolution. A copy of the resolution adopted by the city council will be served upon the appellant by placement in the United States mail, postage prepaid, to the appellant's last known address.

(Ord. 1111 §1, 2008)