Unless otherwise indicated in this chapter, the following meanings
in this chapter are:
means a community antenna television system designed as a
system of antenna, coaxial cables, wires, waveguides and other conductors,
equipment or facilities designed, constructed or used for the purposes
of providing television or FM radio service by cable or through its
facilities as contemplated in this chapter.
means the Federal Communications Commission of the United
States Government or any successor agency which may assume the duties
and functions of the Federal Communications Commission.
means any nonexclusive authority granted pursuant to this
chapter in terms of a franchise or otherwise to construct, operate
and maintain a CATV system in Plymouth and surrounding area.
means all or any portion or portions of the unincorporated
area of the City for which a franchise has been granted under this
chapter.
means the person to whom a franchise under this chapter is
granted by the City Council and any lawful successor or assignee of
that person.
means any and all compensation or receipts obtained from
and as a result of the operation of a CATV system by a grantee within
the franchised area, for a 12 month accounting period, except that
it does not include receipts or compensation for:
The installation, reconnection or any other nonrecurring charges;
The amount of any refunds, credits or other payments made to
subscribers or users;
Any taxes on services furnished by the grantee imposed directly
or indirectly on any subscriber or user by any municipal corporation,
political subdivision, state or other governmental unit and collected
by the grantee for the governmental unit;
The sale or transfer of tangible property;
The sale or transfer of the franchise;
The issuance, sale or transfer of corporation stocks, bonds
or other securities; and
Loans or gifts to the grantee.
means any property constructed, installed, operated or maintained
by a grantee under the authority of a nonexclusive franchise issued
pursuant to this chapter.
means the surface of, and the space above and below, any
public street, road, highway, freeway, lane, alley, court, sidewalk,
parkway, drive, public utility easement, or other public place as
may be authorized by the City Council, existing as such within the
unincorporated area of this City as of or after the effective date
of the ordinance codified in this chapter.
means any person or entity receiving for any purpose the
CATV service of a grantee.
No person shall extend, operate or carry on the business of
distributing to any persons in this City any television signals or
radio signals by means of a CATV system unless a franchise therefor
has first been obtained pursuant to the provisions of this chapter
and unless the franchise is in full force and effect. No person shall
construct, install or maintain within any street in the City, or within
any other public property of the City, 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, any equipment or facilities
for distributing any television signals or radio signals through a
CATV system unless a franchise authorizing the use of the street or
property or area has first been obtained pursuant to the provisions
of this chapter and unless the franchise is in full force and effect.
A nonexclusive franchise to construct, operate and maintain
a CATV system within any franchise area may be granted by the City
Council to any person, whether operating under an existing franchise
or not, offering to furnish and provide a system pursuant to the terms
and provisions of this chapter. No provision of this chapter shall
be construed as to require the granting of a franchise when in the
opinion of the City Council it is in the public interest to restrict
the number of grantees to one or more. Neither the granting of any
nonexclusive franchise under this chapter nor any of the provisions
contained in this chapter shall be construed to prevent the City from
granting any identical, or similar, nonexclusive franchise to any
person within all or any portion of the City.
An application for a franchise under this chapter shall be in
writing and accompanied by a nonrefundable payment to the City of
$250 to reimburse the City for expenses incurred in connection with
processing and handling the application. The application is to be
submitted to the City Council and will be referred to the City Attorney
for coordination of the review of the application prior to the City
Council's setting of a public hearing regarding the application.
An application shall contain the following information:
A.
The
name and address of the applicant;
B.
A statement
and description of the CATV system proposed to be constructed, installed,
maintained or operated by the applicant;
C.
The
proposed location of the CATV system and its various components;
D.
A description
of the manner in which the applicant proposed to construct, install,
maintain and operate the CATV system and the extent and manner in
which existing or future poles or other facilities or other public
utilities will be used for the system;
E.
A description
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;
F.
A description
of the equipment or facilities proposed to be constructed, installed
or maintained therein and the proposed location thereof;
G.
A map
specifically showing and delineating the proposed franchise area within
which the applicant proposed to provide CATV services and for which
a franchise is requested;
H.
A statement
or schedule in a form approved by the City Clerk or 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;
I.
A copy
of any contract, if existing, between the applicant and any public
utility providing for the use of facilities of the public utility,
such as poles, lines or conduits;
J.
A statement
setting forth all agreements and understandings, whether written oral
or implied, existing between the applicant and any person who is a
party in interest with respect to the proposed franchise or the proposed
CATV operation. If a franchise is granted to a person posing as a
front or as the representative of another person, and that information
is not disclosed in the original application, the franchise shall
be deemed void and of no force and effect;
K.
In the
event that the applicant fails to submit an application which contains
the items specified in this section, at the time of submission to
the City, the applicant shall be so notified in writing by the City
Clerk within 45 days of receipt of the application by the Clerk of
the City Council. The applicant has the option, upon such notification
by the City Clerk, to either request that the application be set for
public hearing before the City Council in its incomplete form or shall
have one year to correct any incompleteness. If the applicant neither
requests a public hearing nor supplies an application containing the
requirements specified in this section, within one year of the notification
of incompleteness, the application will be considered lapsed and closed.
The applicant is not precluded from submitting a new application at
any time, upon payment of a new application fee. Any new application
shall be complete of itself without reference to any other prior application
which has lapsed.
Upon consideration of any application, the City Council may
refuse to grant the requested franchise or the City Council may by
resolution grant a franchise for a CATV system to any applicant as
may appear from its application to be in the opinion of the City Council
best qualified to render good and efficient CATV services to subscribers
in the proposed franchise area. The application submitted together
with any amendments, and this chapter shall constitute and form part
of the franchise if granted.
A franchise for CATV systems shall only be awarded to an applicant
following full consideration by the City Council of the applicant's
legal character, financial, technical and other qualifications, applicant's
experience, the adequacy and feasibility of construction arrangements,
and any other consideration that will safeguard the public interest.
City Council action awarding or denying a franchise shall follow a
public hearing for which prior notice has been given and which affords
due process.
Within 30 days after the date of a City Council resolution awarding
a franchise, or within such extended period of time as the City Council
may authorize, which authorization shall not be unreasonably withheld,
the grantee shall file with the City Clerk his or her written acceptance
in forms satisfactory to the City Attorney, of the franchise, together
with the required bond and insurance policies 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. The
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. In the event the grantee does
not meet the deadlines provided in this section the grantee's
application and award of a franchise will be considered automatically
expired.
Any franchise granted pursuant to this chapter shall include,
among other things, 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 Plymouth and no other purpose whatsoever.
Inclusion of the foregoing statement in any franchise shall
not be deemed to limit the authority of the City to include any other
reasonable condition, limitation or restriction which it may deem
necessary to impose in connection with a franchise granted pursuant
to the authority conferred by this chapter.
No franchise granted by the City Council shall be for a term
longer than 15 years following the date of execution of the franchise
agreement and the City Council.
The franchise may be modified by mutual agreement of the parties
during the term of the franchise.
A franchise may be renewed for successive terms, not to exceed
15 years each, if the renewal or renewals are approved, in writing,
by the City Council and the grantee.
Any neglect, failure or refusal of a grantee to substantially
comply with any of the material terms or conditions of this chapter,
the franchise agreement, or law, continuing for more than 60 days
following written notice and an opportunity to cure such defect, shall
work a forfeiture thereof in addition to the other penalties and rights
provided in this chapter. The City Council may thereupon declare the
franchise forfeited and may exclude the grantee from further use of
acts thereunder, and the grantee shall be deemed to have immediately
and automatically surrendered all rights under this chapter. The grantee
shall remove its equipment from the streets and other locations under
City jurisdiction and within the franchise area within 90 days after
receipt of notice of the City Council's declaration that the
franchise has been forfeited.
Notice for the purpose of this section, shall be in writing
and deposited in the United States mail, postage prepaid, as certified
or registered mail, addressed to the grantee at its address last filed
with the City Council. Nothing contained in this chapter shall be
construed to limit the City Council from extending the deadlines set
out in this provision where there is reasonable cause to do so.
Any franchise granted pursuant to the provisions of this chapter
shall authorize and permit the grantee to engage in the business of
constructing, operating and providing a CATV system in the franchise
area and, for that purpose, to erect, install, construct, repair,
replace, reconstruct, maintain and retain in, on, over, under, across,
and along any public street, where the City's interest therein
will support the grant, and through easements which have been dedicated
from compatible uses, such poles, wires, cable, conductors, ducts,
conduit, vaults, manholes amplifiers, appliances, devices, attachments
and other property as may be necessary and appurtenant to the CATV
system; and in addition, to use, operate and provide similar facilities
or properties rented or leased from other persons, including, but
not limited to, any public utility or other person permitted to have
business in the City.
(Ord. 2010-05 § 8)
In the event that an action by the City Council under this chapter
requires prior public notice of a hearing, such notice shall be given
by publication of the notice of a public hearing pursuant to Government
Code Section 6061, at least 15 days prior to the public hearing, in
a newspaper of general circulation in the franchise area.
The City Council may from time to time by resolution establish franchise fees, as measured by a percentage of gross revenues of the grantee, for the various parts of the City, but in no event shall such franchise fees exceed the maximum percentage per year of the gross revenues of the grantee allowed by the then applicable law. Any grantee granted a franchise under this chapter shall pay to the City during the term of such franchise the franchise fee established for the franchise area at the time the franchise is granted unless the franchise is later amended by resolution of the City Council. Payment by the grantee to the City shall be made annually at the same time the financial statement required by Section 5.10.040(J) is filed. The payments provided for in this section shall be in lieu of any occupation tax, license, tax or similar levy over which the City Council has control.
The grantee and the City retain all rights under law regarding
the passing through of changes in franchise fees and designation of
franchise fees on a subscriber's bill.
The grantee shall file a financial statement for the preceding
fiscal year, which has been prepared by a certified public accountant
or by a public accountant, within 90 days after the expiration of
the grantee's fiscal year. The statement shall show in detail
the gross revenues of the grantee derived from the franchise granted
by the City Council.
The right is reserved to the City of audit and recomputation
of any and all amounts paid under this chapter until expiration of
a period of three years following payment. Acceptance shall not be
construed as a release or as an accord and satisfaction of any claim
the City may have for further or additional sums payable under this
chapter or for the performance of any other obligations under this
chapter.
A.
Any
franchise granted under this chapter shall be nonexclusive.
B.
No privilege
or exemption shall be authorized or conferred by a franchise granted
under this chapter except those specifically prescribed in this chapter.
C.
Any
privilege claimed under a franchise by the grantee in any street,
or other public property, shall be subordinate to any prior occupancy
thereof for public purposes.
D.
A franchise
granted hereunder shall be a privilege to be held in personal trust
by the original grantee. It cannot be sold, transferred, leased, assigned,
or disposed of, in whole or in part, either by forced or involuntary
sale, merger, consolidation, or otherwise, without prior consent to
the City Council expressed in writing, and under the conditions therein
prescribed. The grantee shall file with the City Council within 30
days after any sale, transfer, assignment, or lease of the franchise
or any part thereof or any of the rights or privileges granted thereby,
written evidence of the transaction certified to by the grantee or
its fully authorized officers. Any proposed assignee must show financial
responsibility and must agree to comply with all of the provisions
of the chapter and provided further, that no consent or approval shall
be required for a transfer in trust, by mortgage, by security agreement,
or by other hypothecation as a whole, to secure an indebtedness, or
for a transfer required by operation of law.
E.
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 Council
or by law to any other officer, employee, department, or board of
the City.
F.
The
grantee shall have no recourse whatsoever against the City for any
loss, cost, expense, or damage arising out of any provisions or requirements
of this chapter or its enforcement.
G.
Any
franchise granted pursuant to this chapter shall be subject to all
provisions, rules, regulations, and conditions prescribed by Federal,
State, County, and local law heretofore or hereafter enacted or established
during the term of any franchise granted hereunder, except that nothing
herein shall be so interpreted as to cause this chapter, or any franchise
granted pursuant to it, to be inapplicable or inoperative as a result
of the laws of another governmental agency or agencies.
H.
Any
franchise granted under this chapter shall not relieve the grantee
on any obligation involved in obtaining pole space from any department
or division of the City, other agency or government, utility company,
or from others maintaining poles in streets, provided that latter
shall cooperate with the grantee to the end that only one set of poles
is required by all.
A.
Nothing
in this chapter shall in any way or to any extent impair or affect
the right of the City to acquire the grantee's property either
by purchase or through exercise of the right of eminent domain, in
respect to any grantee.
B.
No franchise
granted under this chapter shall be given any value before any court
or other public authority in any action or proceeding brought by the
City in excess of the amount of the required filing fee and any other
sum paid by the grantee to the City for franchise at the time of granting.
C.
There
is reserved to the City every right and power which is required to
be reserved in this chapter or provided by any ordinance or resolution
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, enacted or established
before or after the effective date of the ordinance codified in this
chapter.
D.
The
City Council may do all things which are necessary and convenient
in the exercise of its jurisdiction under this chapter.
E.
Neither
the granting of any franchise under this chapter nor any of the provisions
contained in this chapter shall be construed to prevent the City from
granting any identical or similar franchise to any other person within
all or any portion of the City.
F.
Neither
the granting of any franchise nor any provision herein shall constitute
a bar to the exercise of any governmental right or power of the City.
A.
The
grantee shall establish procedures to resolve consumer controversy
or charge arising from the operations of any grantee under this chapter.
B.
In the
event that a consumer controversy or charge cannot be settled between
the parties, the consumer or grantee has the option to request the
City Clerk to review the matter and attempt to resolve the issues
on an informal inquiry basis. The City Clerk shall accept and review
all evidence submitted by all parties concerning the matter. The City
Clerk shall issue a written decision to all parties concerning a controversy
or charge brought for informal inquiry within 15 days after the matter
is received by the City Clerk. The time limit set out in subsection
may be extended by mutual agreement of all the parties.
C.
In the
event that any of the parties is in disagreement with the decision
issued by the City Clerk, the parties retain the option of submitting
the controversy or charge to mediation or arbitration or appropriate
court proceedings. For the purpose of proceedings under this subsection,
the decision of the City Clerk shall be considered as the final administrative
decision and no other administrative decision and no other administrative
procedures need be completed prior to filing a court action in the
matter.
A.
Upon
acceptance of any franchise, the grantee shall immediately initiate
action to obtain all permits, licenses, easements, variances, and
any other authorizations which are required or necessary in the conduct
of its business, including, but not limited to, any utility joint-use
attachments, microwave carrier licenses, any authorizations required
to import distant signals, and any other permits, licenses and authorizations
to be granted by duly constituted regulatory agencies having or asserting
jurisdiction over the operation of the CATV system, any associated
microwave transmission facilities, or any associated facility, and
the grantee shall proceed with due diligence until all such matter
are obtained.
Copies of all petitions, applications, and communications submitted
by the grantee to the Federal Communications Commission, or any other
Federal or State regulatory commission or agency having jurisdiction
in respect to any matters affecting CATV operation authorized pursuant
to its franchise, shall also be submitted simultaneously to the County
by the grantee.
B.
Within 90 days after obtaining all the required or necessary permits, licenses, easements, variances, and any other authorizations referred to in subsection A of this section, grantee shall commence construction and installation shall be pursued with reasonable diligence.
C.
Within
180 days after the commencement of construction and installation of
a CATV system, grantee shall proceed to render initial service to
subscribers, and the completion of the construction and installation
shall be pursued with reasonable diligence.
D.
Failure to do any of the foregoing within the time specified except as provided in subsection E of this section shall be grounds for termination of the franchise.
E.
The
City Council in its discretion may extend the time for grantee, acting
in good faith, to do any act required hereunder.
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The time for commencement of construction and installation,
or the rendering of service to subscribers, initially or thereafter,
shall be extended or excused, as the case may be, for any period during
which grantee experiences delay or interruptions due to any of the
following circumstances if reasonably beyond its control: necessary
utility changes or rearrangements, governmental or regulatory restrictions
or requirements, labor strikes, lockouts, war (declared).
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A.
During
the development of new residential subdivisions, the planning of new
residential subdivisions, the Planning Department shall include the
cable television company or companies, in whose territory the development
is situated, in the list of referrals to process the tentative map
application.
B.
Any
dedication of a public utility easement shall include the use of the
easement for CATV use.
A.
In the
event that the use of any part of the CATV system is discontinued
for any reason for a continuous period of 12 months, or in the event
the system or property has been installed in any street or public
place without complying with the requirements of this chapter, or
the franchise has been terminated, canceled, or has expired, the grantee
shall promptly, upon being given 10 days' written notice, remove
from the streets or public places all property and poles of the system
other than any which the Director of Public Works may permit to be
abandoned in place. In the event of removal, the grantee shall promptly
restore the street or other area from which the property has been
removed to a condition satisfactory to the Director of Public Works.
B.
Any
property of the grantee remaining in place 60 days after the termination,
forfeiture or expiration of the franchise shall be considered permanently
abandoned. The Director of Public Works may extend the time.
C.
Any
property of the grantee remaining in place shall be abandoned in the
manner the Director of Public Works prescribes. Subject to the provisions
of any utility joint use attachment agreement, 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 Director of Public
Works an instrument in writing, to be approved by the City Attorney,
transferring to the City, the ownership of the property; provided
however, that in the event the City acquires ownership of the property
and operates the property as a cable system or effects a transfer
of ownership of the property as a cable system to another person,
such acquisition or transfer shall be at a value or price as required
by law.
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 place, any property of the grantee
when required by the Director of Public Works by reason of traffic
conditions, public safety, street vacation, freeway and street construction,
change or establishment of street grade, installation or 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 grantee shall in all such cases have the privileges and be
subject to the obligations to abandon any property of the grantee
in place, as provided in this chapter.
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 Director of Public
Works, the Director shall give written notice to the grantee of such
failure. The notice shall be in writing addressed to the grantee's
business address and mailed with postage paid. After seven days following
the mailing of the notice, the Director of Public Works may at his
or her option cause the work to be done and the grantee shall pay
to the City the cost thereof in the itemized amounts reported by the
Director of Public Works to the grantee within 30 days after receipt
of the itemized report.
If required by the resolution granting the franchise, the grantee
shall, concurrently with the filing of an acceptance of award under
any franchise granted under this chapter, file with the City Clerk
and shall at all times thereafter maintain in full force and effect
for the term of a franchise or any renewal thereof, at grantee's
sole expense, a corporate surety bond in a company and in a form approved
by the City Attorney in the amount established by the City Council
prior to or concurrently with the granting of the franchise, renewable
annually, and conditioned upon the faithful performance of grantee,
and upon the further condition that in the event grantee shall fail
to comply with any one or more of the provisions of this chapter,
or of any franchise issued to the grantee hereunder, there shall be
recoverable jointly and severally from the principal and surety of
the bonds any damages or loss suffered by the City as a result thereof,
including the full amount of any compensation, indemnification, or
cost of removal or abandonment of any property of the grantee as prescribed
hereby which may be in default, plus a reasonable allowance for attorney's
fees and costs, up to the full amount of the bond; the condition to
be a continuing obligation for the duration of the franchise and any
renewal thereof and thereafter until the grantee has liquidated all
of its obligations with the City that may have arisen from the acceptance
of the franchise or renewal by the grantee or from its exercise of
any privilege therein granted. The bond shall provide that 30 days'
prior written notice of intention not to renew, cancellation, or material
change be given to the City Clerk. Neither the provisions of this
section, nor any bond accepted by the City pursuant hereto, nor any
damages recovered by the City thereunder, shall be construed to excuse
faithful performance by the grantee or limit the liability of the
grantee under any franchise issued hereunder or for damages, either
to the full amount of the bond or otherwise. The City Council may
at any time waive or reduce the amount of the bond provided for by
this section.
A.
The
grantee shall indemnify the City, its officers, and its employees
against all claims, demands, actions, suits, and proceedings by others,
against all liability to others, and against any loss, cost, and expenses
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
hereunder.
B.
The
grantee shall at all times during the existence of any franchise issued
hereunder 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 Attorney and in a form satisfactory
to the City Attorney, protecting the City and all persons against
liability for loss or damage occasioned by the operations of grantee
under a franchise and for property damage in the amounts required
by resolution granting the franchise. A copy of the policy or policies
or certificates of insurance showing the existence of the insurance
coverage shall be filed by the grantee with the City Council.
C.
The
policies mentioned in the foregoing paragraph shall name the City,
its officers, boards, commissions, agents, and employees, shall contain
a contractual liability endorsement approved by the City Attorney,
and shall contain a provision that a written notice of any cancellation
or reduction in coverage of said policies shall be delivered to the
City Clerk 30 days in advance of the effective date thereof.
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 in relation to its franchise. If any maps or records are not
kept in the City or upon reasonable request made available in the
City and if the City Council determines that an examination of the
maps or records is necessary or appropriate, then all travel and maintenance
expense necessarily incurred in making the examination shall be paid
by the grantee.
B.
The
grantee shall prepare and furnish to the Director of Public Works
and the City Clerk, at the times and in the form prescribed by either
officer, reports with respect to its operations, affairs, transaction,
or property as may be reasonable, necessary or appropriate to the
performance of any of its officers in connection with the franchise.
C.
The
grantee shall at all times make and keep full and complete plans and
records showing the exact location of all CATV equipment installed
or in use in streets or other public places in the City.
The CATV system shall be installed and maintained in accordance
with the highest and best accepted standards of the industry to the
end that subscribers shall receive the best possible service.
All matters provided in this chapter to be filed with the City,
unless provided otherwise in this chapter, shall be filed with the
City Clerk.
No person or entity 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 or any other charges as provided by this chapter or any resolution
granting the franchise. Grantee shall assure that access to cable
service is not denied to any group of potential residential cable
subscribers because of the income of the residents of the local area
where the group resides.
A.
No person
shall make unauthorized connection, whether physically, acoustically,
inductively, electronically, or otherwise, with any part of a franchised
CATV system within the City for the purpose of taking or receiving
television signals, radio signals, pictures, programs, sound or electronic
impulses of any kind for the purpose of enabling him or herself or
others to receive any television signal, radio signal, picture, program,
sound or electronic impulses.
B.
No person,
without the consent of the grantee, shall willfully tamper with, remove,
obstruct, or injure any cables, wires, devices, or equipment used
for the distribution of televisions signals, radio signals, pictures,
programs, sound, or electronic impulses of any kind.
(Ord. 2010-01 § 4)
