A.
The
Federal Telecommunications Act of 1996, Section 253(c), confirms the
authority of local governments "to manage the public rights-of-way"
and "to require fair and reasonable compensation from telecommunications
providers, on a competitively neutral and nondiscriminatory basis,
for use of public rights-of-way."
B.
The
public rights-of-way are a substantial asset managed by the city in
trust for its citizens. It is the city's obligation, and has been
the historical role of the city, to manage the rights-of-way in a
manner which best promotes the health, safety and welfare of its citizens,
and results in fair compensation for occupancy and use of the rights-of-way.
C.
A number
of telecommunications providers currently occupy and use the public
rights-of-way in the city in the course of conducting their various
businesses. The city maintains and strives to keep in good repair
the rights-of-way, at substantial and ongoing cost. Although the general
taxpayers bear the financial burden of these costs, a primary cause
for the early and excessive deterioration of the rights-of-way is
their frequent excavation, construction and reconstruction by telecommunications
providers who receive revenue and profit from their use of public
property.
D.
Based
upon the provisions of the Telecommunications Act of 1996, whose intent
is to promote competition among telecommunications providers and to
permit such providers to enter new business areas, it is the city's
expectation that it will experience a significant increase in the
number of applications by telecommunications providers to utilize
the public rights-of-way, and that such an increase will place a substantial
additional management and financial burden on the city. Furthermore,
the provisions of the Telecommunications Act of 1996 require that
actions taken by the city be "competitively neutral and nondiscriminatory."
This requirement obligates the city to establish a regulatory structure
that treats all rights-of-way occupants and applicants on a nondiscriminatory
basis.
(O1999 16)
Based upon the findings in Section 5.78.010, it is the intent of the city in enacting the ordinance codified in this chapter, to accomplish the following:
A.
Establish
a regulatory and management structure and procedures for the occupancy
and use of the public rights-of-way by all telecommunications providers,
to the extent not preempted by federal and state law.
B.
Encourage
the entry of new telecommunications providers, on a competitively
neutral and nondiscriminatory basis.
C.
Establish
nondiscriminatory procedures by which the city receives fair compensation
for the occupancy and use of its public rights-of-way.
D.
Establish
nondiscriminatory procedures by which the adverse effects of the use
of the rights-of-way by a multiplicity of telecommunications providers,
such as congestion, damage, inconvenience to the public and visual
blight, can be minimized.
(O1999 16)
This chapter shall constitute, and may be termed, the "Telecommunications
Regulatory Ordinance" of the City of Napa and may be referred to as
such.
(O1999 16)
B.
Telecommunications
providers that hold existing city franchises, licenses, permits, leases
or other authorization to utilize the rights-of-way or public property
shall be exempted from the provisions of this chapter until the term
of the franchise or other authorization expires. Any subsequent renewal
or authorization shall be subject to the provisions of this chapter,
to the extent not preempted by state or federal law.
C.
Telecommunications
providers shall include franchised cable system operators to the extent
that any such operator offers telecommunications services that are
not defined as cable service by federal law.
D.
All
existing permits, licenses, or authorizations to occupy and use the
rights-of-way, if renewed, shall be renewed as franchises, subject
to the provisions of this chapter.
E.
Telecommunications
providers that utilize the rights-of-way and desire to provide video
programming services to the city's residents and businesses shall
first obtain a cable system franchise from the city, provided that
an open video system operator certified and authorized by the Federal
Communications Commission shall not require a city franchise, but
shall meet all obligations imposed by federal law and the applicable
Federal Communications Commission regulations, including payment of
in-lieu franchise fees and public education government (PEG) access
obligations unless provided by other franchisee.
(O1999 16)
For the purposes of this chapter, the following terms, phrases,
words and their derivations shall have the meaning given herein. Words
used in the present tense include the future, words in the plural
number include the singular number, and words in the singular number
include the plural number. Words not defined shall be given their
common and ordinary meaning.
means any person that applies for a franchise pursuant to
this chapter.
means the specific request, submitted by an applicant, for
a franchise, including all written documentation and other representations
regarding the telecommunications system to be constructed and the
telecommunications services to be offered.
means any fee established by the city pursuant to this chapter
to cover the cost of reviewing and processing an application.
means the following:
means a facility regulated under the provisions of Title
IV of the Communications Act of 1934, as amended, consisting of a
set of closed transmission paths and associated signal generation,
reception, and control equipment, that is designed to provide cable
service which includes video programming and which is provided to
multiple subscribers within a community, but such term does not include:
A facility that serves to transmit television signals of one
or more television broadcast stations;
A facility that serves only subscribers without using any public
rights-of-way;
A facility of a common carrier which is subject in whole or
in part to the provisions of Title II of the Federal Telecommunications
Act of 1996, except that such facility shall be considered a cable
system to the extent such facility is used in the transmission of
video programming directly to subscribers unless the extent of such
use is solely to provide interactive on-demand services; or
An open video system that complies with Section 653 of the Federal
Telecommunications Act of 1996; or
Any facilities of any electric utility used solely for operating
its electric utility system.
means the City of Napa, California.
means the City Council of the City of Napa, California.
means the Federal Communications Commission.
means an initial authorization, or renewal thereof, issued
by the City Council, which authorizes the construction and operation
of a cable system or a telecommunications system. Any such authorization,
in whatever form granted, shall not supersede the requirement to obtain
any other generally required license or permit required for the privilege
of transacting business within the city as required by the other ordinances
and laws of the city.
means a franchise grant ordinance or a contractual agreement,
containing the specific provisions of the franchise granted, including
references, specifications, requirements and other related matters.
means any fee or assessment of any kind imposed by the city
on a grantee as compensation for the grantee's use of the public rights-of-way,
and for the costs incurred by the grantor in the maintenance, repair
and replacement of the rights-of-way.
means any "person" receiving a franchise pursuant to this
chapter and under the granting franchise ordinance or agreement, and
its lawful successor, transferee or assignee.
means the City of Napa as represented by the Council or any
delegate, acting within the scope of its jurisdiction.
means the annual gross revenues received by a grantee from
the provision of cable service and/or telecommunications service within
the city, as follows:
For cable service, gross annual revenues shall include ancillary
revenues such as, but not necessarily limited to, local advertising,
home shopping channel commissions, Internet access and leased access
revenues. Gross annual revenues shall not include refundable deposits,
rebates or credits, and any sales, excise or other taxes or charges
imposed externally to the franchise agreement and collected for direct
pass-through to local, state or federal government.
For telecommunications service, gross annual revenues shall
include all revenues received from the provision of telecommunications
service in the city and arising from the operation of the franchise
regardless of where billed.
means a system, as defined 47 U.S.C. Title VI, Part V, which
provides video programming to subscribers through the facilities of
a common carrier or other entity and whose operation is certified
as an OVS operator by the FCC, and governed by the FCC regulations
applicable to OVS service.
means an individual, partnership, association, joint-stock
company, trust, corporation or governmental entity, and any lawful
successor, transferee or assignee.
means any property owned, controlled or managed by the city.
means any section, subsection or provision of this chapter.
means the entire geographic area within the city as it is
now constituted or may in the future be constituted, unless otherwise
specified in the franchise agreement.
means the state of California.
means each of the following which have been dedicated to
the public or are hereafter dedicated to the public and maintained
under city authority and located within the city limits: streets,
roadways, highways, avenues, lanes, alleys, sidewalks, easements,
public rights-of-way and similar public property and areas that the
grantor shall permit to be included within the definition of street
from time to time.
means any person who or which elects to subscribe to, for
any purpose, a cable service or a telecommunications service provided
by the grantee by means of or in connection with the cable system
or telecommunications system, and who pays the charges therefor.
means any person that provides telecommunications services
to a subscriber within the city.
means any service defined as telecommunications service in
the Federal Telecommunications Act of 1996, other than cable service.
means any system that provides telecommunications service,
and any of whose facilities occupy the rights-of-way.
means programming generally considered comparable to programming
provided by a television broadcast station.
(O1999 16)
A.
Franchise
Purposes. A franchise granted by the city under the provisions of
this chapter shall encompass the following purposes:
1.
To
engage in the business of providing cable service or telecommunications
service, and such other services as may be permitted by law, which
grantee chooses to provide to subscribers with-in the designated service
area;
2.
To
erect, install, construct, repair, rebuild, reconstruct, replace,
maintain, and retain, wires or cables lines, related electronic equipment,
supporting structures, appurtenances, and other property in connection
with the operation of a cable system or a telecommunications system
in, on, over, under, upon, along and across streets or other public
places within the designated service area;
3.
To
maintain and operate said franchise properties for the origination,
reception, transmission, amplification, distribution and delivery
of cable or telecommunications services, and such other services as
may be permitted by law;
4.
To
set forth the obligations of a grantee under the franchise.
B.
Franchise
Required. It is unlawful for any person to construct, install or operate
a cable or telecommunications system in the city within any public
street without a properly granted franchise awarded pursuant to the
provisions of this chapter.
C.
Term
of the Franchise.
1.
A
franchise granted hereunder shall be for a term established in the
franchise agreement, commencing on the grantor's adoption of an ordinance
or resolution authorizing the franchise.
2.
A
franchise granted hereunder may be renewed upon application by the
grantee pursuant to the provisions of applicable state and federal
law and of this chapter.
D.
Franchise
Territory. Any franchise shall be valid within all the territorial
limits of the city, unless otherwise stated in the franchise agreement,
and within any area added to the city during the term of the franchise.
E.
Federal
or State Jurisdiction. This chapter shall be construed in a manner
consistent with all applicable federal and state laws, and shall apply
to all franchises granted or renewed after the effective date of the
ordinance codified in this chapter to the extent permitted by applicable
law.
F.
Franchise
Nontransferable.
1.
Grantee
shall not sell, transfer, lease, assign, sublet or dispose of, in
whole or in part, either by forced or involuntary sale, or by ordinary
sale, contract, consolidation or otherwise, the franchise or any of
the rights or privileges therein granted, without the prior consent
of the Council and then only upon such terms and conditions as may
be reasonably prescribed by the Council, which consent shall not be
unreasonably denied or delayed. Any attempt to sell, transfer, lease,
assign or otherwise dispose of the franchise without the consent of
the Council shall be a material violation of this chapter and the
franchise agreement. The granting of a security interest in any grantee
assets, or any mortgage or other hypothecation, shall not be considered
a transfer for the purposes of this section.
2.
The requirements of subsection A shall apply to any change in control of grantee. The word "control" as used herein is not limited to major stockholders or partnership interests, but includes actual working control in whatever manner exercised. In the event that grantee is a corporation, there shall be a rebuttable presumption of a change in control where ownership or control of more than 30% of the voting stock of grantee is acquired by a person or group of persons acting in concert, none of whom own or control the voting stock of the grantee as of the effective date of the franchise, singularly or collectively.
3.
Transfer
of the franchise from one wholly-owned subsidiary to another wholly-owned
subsidiary shall not require prior consent of the grantor.
4.
Grantee
shall notify grantor in writing of any foreclosure or any other judicial
sale of all or a substantial part of the franchise property of the
grantee or upon the termination of any lease or interest covering
all or a substantial part of said franchise property. Such notification
shall be considered by grantor as notice that a change in control
of ownership of the franchise has taken place and the provisions under
this section governing the consent of grantor to such change in control
of ownership shall apply.
5.
For
the purpose of determining whether it shall consent to such change,
transfer, or acquisition of control, grantor may inquire into the
qualifications of the prospective transferee or controlling party,
and grantee shall assist grantor in such inquiry. In seeking grantor's
consent to any change of ownership or control, grantee shall have
the responsibility of insuring that the grantee and/or the proposed
transferee complete an application in accordance with any standard
Federal Communications Commission forms or the equivalent. An application
shall be submitted to grantor not less than 120 days prior to the
proposed date of transfer. The transferee shall be required to establish
that it possesses the qualifications and financial and technical capability
to operate and maintain the system and comply with all franchise requirements
for the remainder of the term of the franchise. If the legal, financial
(including all past obligations such as unpaid franchise fees), character,
and technical qualifications of the applicant are satisfactory, the
grantor shall consent to the transfer of the franchise. The consent
of the grantor to such transfer shall not be unreasonably denied or
delayed.
6.
If
any financial institution having a pledge of the grantee or its assets
for the advancement of money for the construction and/or operation
of the franchise shall take control of and operate the cable or telecommunications
system, it shall notify the grantor. Further, said financial institution
shall also submit a plan for such operation within 30 days of assuming
such control that will insure continued service and compliance with
all franchise requirements during the term the financial institution
exercises control over the cable or telecommunications system. The
financial institution shall not exercise control over the cable or
telecommunications system for a period exceeding one year unless extended
by the grantor in its discretion and during said period of time it
shall have the right to petition the grantor to transfer the franchise
to another grantee.
7.
As
a pre-condition of, and prior to any transfer, grantee shall reimburse
grantor for grantor's reasonable processing and review expenses in
connection with the transfer of the franchise or of control of the
franchise, including without limitation, costs of administrative review,
financial, legal and technical evaluation of the proposed transferee,
consultants (including technical and legal experts and all costs incurred
by such experts), notice and publication costs and document preparation
expenses. Any such reimbursement shall not be charged against any
franchise fee due to grantor during the term of the franchise.
G.
Geographical
Coverage.
1.
Grantee
shall design, construct and maintain the cable or telecommunications
system to have the capability to serve every person in the city, subject
to any exceptions provided in the franchise agreement.
2.
After
service has been established for any service area, grantee shall provide
service to any requesting subscriber within that service area within
30 days from the date of request, provided that the grantee is able
to secure all public rights-of-way necessary to extend service to
such subscriber within such 30-day period on reasonable terms and
conditions.
H.
Nonexclusive
Franchise. Any franchise granted shall be nonexclusive. The grantor
specifically reserves the right to grant, at any time, such additional
franchises as it deems appropriate, subject to applicable state and
federal law, provided that if the grantor grants an additional franchise
on terms more favorable to the second grantee (whether by the grant
of greater benefits or the imposition of lesser obligations), or if
another party utilizing the public rights-of-way offers service competitive
with grantee, then the initial grantee shall have the right to renegotiate
its franchise to incorporate the more favorable terms and/or reduce
its obligations to achieve competitively neutral and nondiscriminatory
treatment.
I.
Multiple
Franchises.
1.
Grantor
may grant any number of franchises subject to applicable state or
federal law. Grantor may limit the number of franchises granted, based
upon, but not necessarily limited to, the requirements of applicable
law and specific local considerations, such as the capacity of the
public rights-of-way to accommodate multiple cables, wires and facilities
in addition to the facilities of the utility systems, such as electrical
power, telephone, gas and sewerage.
2.
Developers
of new residential housing with underground utilities shall provide
conduit to accommodate cables for at least two wired or cabled systems
and dedicate the use of such conduit to the city.
3.
Grantor
may require that any new grantee be responsible for its own underground
trenching and the costs associated therewith, if, in grantor's opinion,
the public rights-of-way in any particular area cannot feasibly and
reasonably accommodate additional wires, cables or ancillary facilities.
(O1999 16)
A.
Filing
of Applications. Any person desiring an initial franchise for a cable
or telecommunications system shall file an application with the city.
A reasonable nonrefundable application fee established by the city
shall accompany the application to cover all costs associated with
processing and reviewing the application, including without limitation
costs of administrative review, financial, legal and technical evaluation
of the applicant, consultants (including technical and legal experts
and all costs incurred by such experts), notice and publication requirements
with respect to the consideration of the application and document
preparation expenses. In the event such costs exceed the application
fee, the selected applicant(s) shall pay the difference to the city
within 30 days following receipt of an itemized statement of such
costs. Full and timely payment of such costs shall be a pre-condition
to the grant of any such franchise.
B.
Applications—Contents.
An application for an initial franchise for a cable or telecommunications
system shall contain, where applicable:
1.
A
resume of prior history of applicant, including the expertise of applicant
in the cable or telecommunications system field;
2.
A
list of the partners, general and limited, of the applicant, if a
partnership, or the percentage of stock owned or controlled by each
stockholder, if a corporation;
3.
A
description of the background of each such person;
4.
The
names and addresses of any parent or subsidiary of applicant or any
other business entity owning or controlling applicant in whole or
in part, or owned or controlled in whole or in part by applicant;
5.
A
current financial statement of applicant verified by a certified public
accountant audit or otherwise certified to be true, complete and correct
to the reasonable satisfaction of the city;
6.
A
proposed construction and service schedule;
7.
Any
reasonable additional information that the city deems applicable.
C.
Consideration
of Initial Applications.
1.
Upon
receipt of any application for an initial franchise, the City Manager
or a delegate shall prepare a report and make recommendations respecting
such application to the City Council.
2.
A
public hearing shall be set prior to any initial franchise grant,
at a time and date approved by the Council. Within 30 days after the
close of the hearing, the Council shall make a decision based upon
the evidence received at the hearing as to whether or not the franchise(s)
should be granted, and, if granted, subject to what conditions. The
Council may grant one or more franchises, or may decline to grant
any franchise.
D.
Franchise
Renewal. Franchise renewals shall be in accordance with applicable
law. Grantor and grantee, by mutual consent, may enter into renewal
negotiations at any time during the term of the franchise.
(O1999 16)
A.
Franchise
Fee.
1.
Following
the issuance and acceptance of a franchise, the grantee shall pay
to the grantor a franchise fee in the amount and at the times set
forth in the franchise agreement.
2.
Grantee
may establish any lawful franchise fee for telecommunications and
cable systems, provided that such franchise fee shall be nondiscriminatory.
The amount of the franchise fee may be based upon, but not necessarily
be limited to, the following, or a combination of the following:
a.
A percentage of the system gross revenues.
b.
A fee per linear foot of occupancy of the rights-of-way.
c.
A fee based upon the cost of grantor's acquisition of the rights-of-way,
including the rights-of-way deterioration and necessary earlier repair
of the rights-of-way caused by grantee's initial and subsequent excavations.
d.
A fee based upon the assessed value and fair rental value of comparable
zoned private property adjoining various sections of the rights-of-way.
3.
Grantor, by resolution of the City Council taken no less often than every three years following the effective date of the ordinance codified in this chapter, shall establish a franchise fee schedule for cable and telecommunications system franchises that shall be applicable to subsequently granted franchises. The basis for establishing the schedule shall be contained in the Council resolution, and shall be based on any or all of the methods enumerated in subsections (2)(a) through (2)(d).
4.
In
establishing nondiscriminatory franchise fee schedules, grantor shall
take into account in-kind obligations as well as franchise fees from
existing franchises. As an example, an existing cable system franchise
may provide channels and grant funds for public, educational and governmental
access. The total compensation to the grantor in such a case would
include the imputed value of these obligations plus the franchise
fee paid.
5.
Telecommunications
providers, such as open video system operators, that do not require
a local franchise, shall pay an in-lieu fee to the extent permitted
by law, on a nondiscriminatory basis.
6.
Grantees
sharing the same underground conduit or the same utility poles in
the right-of-way shall each pay a full franchise fee.
7.
Franchise
fees and in-lieu fees shall not be deemed to be a tax or assessment,
but rather rental compensation for the occupancy and utilization of
the public rights-of-way.
B.
Invalidation of Franchise Fee. In the event that a franchise fee established by the grantor under any of the methods enumerated in subsection (A)(2) is found to be invalid by a court of competent jurisdiction, the grantor, within 90 days of the final court decision, shall establish a new franchise fee schedule based on any nondiscriminatory method not invalidated. The new franchise fee schedule shall apply to all franchises affected by the court invalidation, from the date of the court decision. A grantee failure to pay such re-established franchise fee shall be deemed a material breach of the franchise.
C.
Payment
of Fee.
1.
Following
the issuance and acceptance of the franchise, the grantee shall pay
to the grantor a franchise fee in the amount and at the times set
forth in the franchise agreement.
2.
If
the franchise fee is based on a percentage of gross revenues, the
grantor, on an annual basis, shall be furnished a statement within
60 days of the close of the calendar year, either audited and certified
by an independent certified public accountant or certified by an officer
of the grantee, reflecting the total amounts of gross revenues and
all payments, deductions and computations for the period covered by
the payment. Upon 30 days prior written notice, grantor shall have
the right to conduct an independent audit of grantee's records to
determine whether grantee has paid the franchise fee or in-lieu fee
required. If such audit indicates a franchise fee underpayment of
two percent or more, the grantee shall assume all reasonable costs
of such audit. No audit shall be conducted for any period prior to
the date at which the applicable statute of limitations comes into
effect.
3.
Except
as otherwise provided by law, no acceptance of any payment by the
grantor shall be construed as a release or as an accord and satisfaction
of any claim the grantor may have for further or additional sums payable
as a franchise fee or an in-lieu fee under this chapter or for the
performance of any other obligation of the grantee.
4.
In
the event that any franchise and/or in-lieu fee payment or recomputed
amount is not made on or before the dates specified in the franchise
agreement, grantee shall pay as additional compensation:
a.
An interest charge, computed from such due date, at an annual rate
equal to the prime lending rate of any national bank selected by grantor,
plus one percent during the period for which payment was due; and
b.
If the payment is late by 45 days or more, a sum of money equal to
five percent of the amount due in order to defray those additional
expenses and costs incurred by the grantor by reason of delinquent
payment.
c.
In the event of sale, unpaid franchise fees will become the obligation
of the new franchise holder.
D.
Security
Fund.
1.
Grantor
may require grantee to provide a security fund, in an amount and form
established in the franchise agreement. The amount of the security
fund shall be established based on the extent of the grantee's obligations
under the terms of the franchise.
2.
The
security fund shall be available to grantor to satisfy all claims,
liens and/or taxes due grantor from grantee which arise by reason
of construction, operation, or maintenance of the cable or telecommunications
system, and to satisfy any actual or liquidated damages arising out
of a franchise breach, subject to the procedures and amounts designated
in the franchise agreement.
3.
If
the security fund is drawn upon by grantor in accordance with the
procedures established in this chapter and the franchise agreement,
grantee shall cause the security fund to be replenished to the original
amount no later than 30 days after each withdrawal by grantor. Failure
to replenish the security fund as required under this section shall
be deemed a material breach of the franchise.
4.
Grantee
shall retain all rights to litigate any of the actions taken by grantor
in drawing upon the security fund.
E.
Hold
Harmless. Grantee shall indemnify, defend and hold grantor, its officers,
agents, employees, representatives and insurers harmless from any
liability, claims, damages, costs or expenses, to the extent provided
in the franchise agreement. This obligation shall survive the termination
of any franchise.
F.
Insurance.
1.
Grantee
shall take out and maintain at all times during the life of the franchise
operations with an insurance company or companies acceptable to the
city the following insurance policies which cover grantee's operations
under the franchise:
2.
The
specific policy forms, endorsements and amounts of insurance coverage
required of grantee shall be detailed in the franchise agreement and
shall be in accordance with current insurance requirements of city
for similar risks, as determined by the City Risk Manager and City
Attorney.
3.
Documentation
of all required insurance policies shall be provided in a form acceptable
to the City Risk Manager and City Attorney and as specified in the
franchise agreement before operations of the franchise agreement commence.
The city shall have the right to suspend or cancel the franchise should
grantee fail to maintain the insurance policies required in the franchise
agreement.
(O1999 16)
A.
System
Construction.
1.
Grantee
shall not construct any cable or telecommunications system facilities
until grantee has secured the necessary permits from grantor, or other
cognizant public agencies.
2.
In
those areas of the city where transmission lines or distribution facilities
of the public utilities providing telephone and electric power service
are underground, the grantee likewise shall construct, operate and
maintain its transmission and distribution facilities therein underground.
3.
In
those areas of the city where the grantee's cables or wires are located
on the above-ground transmission or distribution facilities of the
public utility providing telephone or electric power service, and
in the event that the facilities of both such public utilities subsequently
are placed underground, and the utilities pay the proportionate cost
of the relocation, then the grantee likewise shall reconstruct, operate
and maintain its transmission and distribution facilities underground,
at grantee's cost. Certain of grantee's equipment which normally are
placed above ground, may continue to remain in aboveground enclosures,
unless otherwise provided in the franchise agreement.
4.
Any
material changes in or extensions of any poles, anchors, wires, cables,
conduits, vaults, laterals or other fixtures and equipment (herein
referred to as "structures"), or the construction of any additional
structures, in, upon, along, across, under or over the streets, alleys
and public ways shall be made under the direction of grantor's City
Engineer or a designee, who shall, if the proposed change, extension
or construction conforms to the provisions hereof, issue written permits
therefor. The height above public thoroughfares of all aerial wires
shall conform to the requirements of the California regulatory body
having jurisdiction thereof.
5.
All
transmission and distribution structures, lines and equipment erected
by the grantee shall be located so as not to interfere with the proper
use of streets, alleys and other public ways and places, and to cause
minimum interference with the rights or reasonable convenience of
property owners who adjoin any of the said streets, alleys or other
public ways and places, and not to interfere with existing public
utility installations.
6.
In
the event that any property or improvement of the grantor in the public
rights-of-way is disturbed or damaged by the grantee or any of its
contractors, agents or employees in connection with undertaking any
and all work pursuant to the right granted to the grantee pursuant
to this chapter, the grantee shall promptly, at the grantee's sole
cost and expense, restore as nearly as practicable to their former
condition said property or improvement which was so disturbed or damaged,
and in the event that any such property or improvement shall at any
later time become uneven, unsettled or otherwise require restoration,
repair or replacement because of such disturbance or damage by the
grantee, then the grantee, as soon as reasonably possible, shall,
promptly upon receipt of notice from the grantor and at the grantee's
sole cost and expense, restore as nearly as practicable to their former
condition said property or improvement which was disturbed or damaged.
Any such restoration by the grantee to the former condition shall
be made in accordance with such materials and specifications as may,
from time to time, be then provided for by grantor ordinance.
7.
Prior
to commencing any work in the public rights-of-way, the grantee shall
obtain any and all permits lawfully required by such grantor codes
and ordinances of general application for such work, and pay the normal
fees for such permits. These fees shall not be considered part of
the franchise fee. In the event that emergency work may be required
by the grantee, however, the grantee shall obtain any and all such
permits within three working days after the beginning of such emergency
work.
8.
There
shall be no unreasonable or unnecessary obstruction of the public
rights-of-way by the grantee in connection with any of the work herein
provided for, and the grantee shall maintain such barriers, signs
and warning signals during any such work performed on or about the
public rights-of-way or adjacent thereto as may be necessary to reasonably
avoid injury or damage to life and property.
9.
If
at any time during the period of the franchise the grantor shall lawfully
elect to alter or change the grade or location of any street, alley
or other public rights-of-way, the grantee shall, upon reasonable
notice by the grantor, remove, relay and relocate its poles, wires,
cables, underground conduits, manholes and other fixtures at it own
expense, and in each instance comply with the requirements of the
grantor.
10.
The grantee shall not place poles, conduits or other fixtures above
or below ground where the same will interfere with any existing gas,
electric, telephone fixtures, water hydrants or other utility, and
all such poles, conduits or other fixtures placed in any street shall
be so placed as to comply with all ordinances of the grantor.
11.
The grantee may be required by the grantor to permit joint use of
its property and appurtenances located in the streets, alleys or other
public rights-of-way, by utilities insofar as such joint physical
occupancy may be reasonably practicable and not interfere with grantee's
operations, and upon payment of reasonable rental therefor; provided
that in the absence of agreement regarding such joint use, the City
Council shall provide for mediation of the terms and conditions of
such joint use and the compensation to be paid therefrom.
12.
The grantee shall, on request of any person holding a moving permit
issued by the grantor, temporarily move its wires or fixtures to permit
the moving of buildings, the expense of such temporary removal to
be paid by the person requesting the same, and the grantee shall be
given not less than 48 hours advance notice to arrange for such temporary
changes.
13.
The grantee shall obtain written approval from the grantor prior
to trimming or otherwise altering any trees upon and overhanging the
streets, alleys, sidewalks and public places.
B.
Applicable
Technical and Other Standards. The grantee shall construct, install,
operate and maintain its cable or telecommunications system in a manner
consistent with all applicable laws, ordinances, construction standards,
governmental requirements, FCC technical standards, and any detailed
standards set forth in its franchise agreement. In addition, the grantee
shall provide to the grantor, upon request, a written report of the
results of the grantee's periodic performance tests conducted pursuant
to FCC, state and franchise standards and guidelines.
C.
Noncompliance with Standards. Repeated and verified failure to maintain specified standards as described in subsection B shall constitute a material breach of the franchise.
D.
Abandonment
or Removal.
1.
In
the event that the use of any property of grantee within the public
rights-of-way is discontinued for a continuous period of 12 months,
grantee shall be deemed to have abandoned that franchise property.
Any part of the cable or telecommunications system that is parallel
or redundant to other parts of the system and is intended for use
only when needed as a backup for the system or a part thereof, shall
not be deemed to have been abandoned because of its lack of use. Grantor,
when the above conditions are met, may make an initial finding of
abandonment and shall there-after provide grantee reasonable written
notice and opportunity to refute the finding of abandonment, which
finding shall become final if not adequately refuted by grantee.
2.
Grantor,
upon such terms as grantor may impose, may give grantee permission
to abandon, without removing, any system facility or equipment laid,
directly constructed, operated or maintained under the franchise.
Unless such permission is granted or unless otherwise provided in
this chapter, the grantee shall remove all abandoned above-ground
facilities and equipment upon receipt of written notice from grantor
and shall restore any affected street to its former state at the time
such facilities and equipment were installed, so as not to impair
its usefulness. In removing its plant, structures and equipment, grantee
shall refill, at its own expense, any excavation that shall be made
by it and shall leave all public ways and places in as good condition
as that prevailing prior to such removal without materially interfering
with any electrical or telephone cable or other utility wires, poles,
or attachments. Grantor shall have the right to inspect and approve
the condition of the public ways, public places, cables, wires, attachments
and poles prior to and after removal. The liability, indemnity and
insurance provisions of this chapter and the security fund as provided
herein shall continue in full force and effect during the period of
removal and until full compliance by grantee with the terms and conditions
of this section.
3.
Upon
abandonment of any franchise property in place, the grantee, if required
by the grantor, shall submit to the grantor an instrument, satisfactory
in form to the grantor, transferring to the grantor the ownership
of the franchise property abandoned, subject to grantee's right, if
any, to compensation under applicable law.
4.
At
the expiration of the term for which the franchise is granted, or
upon its revocation or earlier expiration, as provided herein, in
any such case without renewal, extension or transfer, the grantor
shall have the right to require grantee to remove, at its own expense,
all above-ground portions of the cable or telecommunications system
from all streets and public ways within the city within a reasonable
period of time, which shall not be less than 180 days.
5.
Notwithstanding
anything to the contrary set forth in this chapter, the grantee may
abandon any underground franchise property in place so long as it
does not materially interfere with the use of the street or public
rights-of-way in which such property is located or with the use thereof
by any public utility or other grantee. If such property does materially
interfere with such use, which determination shall be in the sole
discretion of grantor, grantee shall remove such property at grantee's
sole expense. This obligation shall survive the termination of any
franchise.
E.
Restoration
by Grantor—Reimbursement of Costs. In the event of a failure
by grantee to complete any work required herein or by any other law
or ordinance, and if such work is not completed within 30 days after
receipt of written notice thereof from grantor or, if more than 30
days are reasonably required therefor, if grantee does not commence
such work within such 30 days period and diligently complete the work
thereafter (except in cases of emergency constituting a threat to
public health, safety or welfare), grantor may cause such work to
be done and grantee shall reimburse grantor the costs thereof within
30 days after receipt of an itemized list of such costs, or grantor
may recover such costs through the security fund provided by grantee.
F.
Extended
Operation and Continuity of Services. Upon expiration or revocation
of the franchise, the grantor shall have the discretion to permit
grantee to continue to operate the cable or telecommunications system
for an extended period of time. Grantee shall continue to operate
the system under the terms and conditions of this chapter and the
franchise and to provide any and all of the services that may be offered
at that time. It shall be the right of all subscribers to continue
to receive all available services provided that financial and other
obligations to grantee are honored. The grantee shall use reasonable
efforts to provide continuous, uninterrupted service to its subscribers,
including operation of the system during transition periods following
franchise expiration or termination.
G.
Receivership
and Foreclosure.
1.
A
franchise granted hereunder shall, at the option of grantor, cease
and terminate 120 days after appointment of a receiver or receivers,
or trustee or trustees, to take over and conduct the business of grantee,
whether in a receivership, reorganization, bankruptcy or other action
or proceeding, unless such receivership or trusteeship shall have
been vacated prior to the expiration of said 120 days, or unless:
(1) such receivers or trustees shall have, within 120 days after their
election or appointment, fully complied with all the terms and provisions
of this chapter and the franchise granted pursuant hereto, and the
receivership or trustees within said 120 days shall have remedied
any existing breaches under the franchise or provided a plan for the
remedy of such breaches which is satisfactory to the grantor; and
(2) such receivers or trustees shall, within said 120 days, execute
an agreement duly approved by the court having jurisdiction in the
premises whereby such receivers or trustees assume and agree to be
bound by each and every term, provision and limitation of the franchise
granted.
2.
In
the case of a foreclosure or other judicial sale of the franchise
property, or any material part thereof, grantor may serve notice of
termination upon grantee and the successful bidder at such sale, in
which event the franchise granted and all rights and privileges of
the grantee hereunder shall cease and terminate 30 days after service
of such notice, unless: (1) grantor shall have approved the transfer
of the franchise, as and in the manner that this chapter provides;
and (2) such successful bidder shall have covenanted and agreed with
grantor to assume and be bound by all terms and conditions of the
franchise.
(O1999 16)
A.
Records
Required.
1.
Grantee
shall at all times maintain:
a.
A full and complete set of plans, records and "as-built" maps showing
the locations of the cable or telecommunications system installed
or in use in the city.
b.
If requested by grantor, a summary of subscriber service calls, identifying
the number, general nature and disposition of such calls, on a quarterly
basis. A summary of such service calls shall be submitted to the grantor
within 30 days following any grantor request, in a form reasonably
acceptable to the grantor.
2.
The
grantor may impose reasonable requests for additional information,
records and documents from time to time, provided they reasonably
relate to the scope of the city's regulatory rights under this chapter
or the grantee's franchise agreement.
3.
Upon
five days written notice, and during normal business hours, grantee
shall permit examination by any duly authorized representative of
the grantor of all franchise property and facilities, together with
any appurtenant property and facilities of grantee situated within
or without the city, and all records relating to the franchise, provided
they are necessary to enable the grantor to carry out its regulatory
responsibilities under this chapter or the franchise agreement. Grantee
shall have the right to be present at any such examination.
B.
Annual
Reports.
1.
Within
90 days after the end of the calendar year, grantee shall submit a
written annual report to grantor, if requested, with respect to the
preceding calendar year in a form approved by grantor, including,
but not limited to, the following information:
a.
A summary of the previous year's (Or in the case of the initial reporting
year, the initial year's) cable or telecommunications system activities,
including, but not limited to, services begun or discontinued during
the reporting year;
b.
A list of grantee's officers, members of its board of directors,
and other principals of grantee;
c.
A list of stockholders or other equity investors holding five percent
or more of the voting interest in grantee;
d.
An indication of any portions of grantee's service area where service
is not available, and a schedule for providing service;
e.
Any other information relevant to franchise regulation which the
grantor shall reasonably request, and which is relevant to its regulatory
responsibilities.
2.
Upon
request, grantee shall submit to grantor copies of all pleadings,
applications and reports submitted by grantee to, as well as copies
of all decisions, correspondence and actions by, any federal, state
or local court, regulatory agency, or other governmental body which
are non-routine in nature and which will materially affect its cable
or telecommunications system operations within the franchise area.
Information otherwise confidential by law and so designated by grantee,
which is submitted to grantor, shall be retained in confidence by
grantor and its authorized agents and shall not be made available
for public inspection. Notwithstanding the foregoing, grantee shall
have no obligation to provide copies of documents to grantor which
contain trade secrets of grantee or which are otherwise of a confidential
or proprietary nature to grantee unless it receives satisfactory assurances
from grantor that such information can and will be held in strictest
confidence by the grantor. To the extent possible, grantee will provide
grantor with summaries of any required documents or copies thereof
with trade secrets and proprietary matters deleted there-from. The
burden of proof shall be on grantee to establish the confidential
nature of any information submitted, to the reasonable satisfaction
of the grantor.
3.
All
reports required under this chapter, except those designated by grantee
as confidential, shall be available for public inspection in the grantor's
offices during normal business hours.
4.
All
reports and records required under this chapter shall be furnished
at the sole expense of grantee, except as otherwise provided in the
franchise agreement.
5.
The
willful refusal, failure, or neglect of grantee to file any of the
reports required as and when due under this chapter, may be deemed
a material breach of the franchise if such reports are not provided
to grantor within 30 days after written request therefor, and may
subject the grantee to all remedies, legal or equitable, which are
available to grantor under this chapter or the franchise agreement.
6.
Any
materially false or misleading statement or representation made knowingly
and willfully by the grantee in any report required under this chapter
or under the franchise agreement may be deemed a material breach of
the franchise and may subject grantee to all remedies, legal or equitable,
which are available to grantor.
(O1999 16)
A.
Grantor's
Remedies for Violations and Breaches.
1.
If
grantee fails to perform in a timely manner any material obligation
required by this chapter or a franchise granted hereunder, following
notice from the grantor and an opportunity to cure such noncompliance
in accordance with the provisions of this chapter and the franchise,
grantor may at its option and in its sole discretion:
a.
Cure the violation and recover the actual cost thereof from the security
fund established herein if such violation is not cured within 30 days
after written notice to the grantee of grantor's intention to cure
and draw upon the security fund;
b.
Assess against grantee liquidated damages in an amount set forth
in the franchise agreement for any such violations(s) if such violation
is not cured, or if grantee has not commenced a cure, on a schedule
acceptable to grantor, within 30 days after written notice to the
grantee of grantor's intention to assess liquidated damages. Such
assessment may be withdrawn from the security fund, and shall not
constitute a waiver by grantor of any other right or remedy it may
have under the franchise or applicable law, including without limitation,
its right to recover from grantee such additional damages, losses,
costs and expenses, including reasonable and actual attorneys' fees,
as may have been suffered or incurred by grantor by reason of or arising
our of such breach of the franchise.
B.
Procedure
for Remedying Franchise Violations.
1.
Prior
to imposing any remedy or other sanction against grantee specified
in this chapter, grantor shall give grantee notice and opportunity
to be heard on the matter, in accordance with the following procedures:
a.
Grantor shall first notify grantee of the violation in writing by
personal delivery or registered or certified mail, and demand correction
within a reasonable time, which shall not be less than 10 days in
the case of the failure of the grantee to pay any sum or other amount
due the grantor under this chapter or the grantee's franchise and
30 days in all other cases. If grantee fails to correct the violation
within the time prescribed or if grantee fails to commence correction
of the violation within the time prescribed and diligently remedy
such violation thereafter, the grantor shall then give written notice
of not less than 20 days of a public hearing to be held before the
City Council. Said notice shall specify the violations alleged to
have occurred.
b.
Subsequent to the public hearing, the Council shall hear and consider
all other relevant evidence, and thereafter render findings and its
decision.
c.
In the event the Council finds that the grantee has corrected the
violation or has diligently commenced correction of such violation
after notice thereof from grantor and is diligently proceeding to
fully remedy such violation, or that no material violation has occurred,
the proceedings shall terminate and no penalty or other sanction shall
be imposed.
d.
In the event the Council finds that material violations exist and
that grantee has not corrected the same in a satisfactory manner or
has not diligently commenced correction of such violation after notice
thereof from grantor and is not diligently proceeding to fully remedy
such violation, the Council may impose one or more of the remedies
provided in this chapter and the franchise agreement as it, in its
discretion, deems appropriate under the circumstances.
C.
Grantor's
Power to Revoke.
1.
Grantor reserves the right to revoke any franchise granted pursuant to this chapter and rescind all rights and privileges associated with it, in accordance with the provisions of subsection B, in the following circumstances, each of which shall represent a default by grantee and a material breach under the franchise grant:
a.
If grantee shall default in the performance of its material obligations
under this chapter or the franchise agreement and shall continue such
default after receipt of due notice and reasonable opportunity to
cure the default;
b.
If grantee shall fail to provide or maintain in full force and effect
the insurance coverage or security fund as required in the franchise
agreement;
c.
If grantee shall violate any material order or ruling of any regulatory
body having jurisdiction over the grantee relative to the grantee's
franchise, unless such order or ruling is being contested by grantee
by appropriate proceedings conducted in good faith;
d.
If grantee practices any fraud or deceit upon grantor;
e.
If grantee becomes insolvent, unable or unwilling to pay its debts,
or is adjudged a bankrupt.
2.
The
termination and forfeiture of the grantee's franchise shall in no
way affect any right of grantor to pursue any remedy under the franchise
or any provision of law.
D.
Force
Majeure—Grantee's Inability to Perform. In the event grantee's
performance of any of the terms, conditions or obligations required
by this chapter or a franchise granted hereunder is prevented by a
cause or event not within grantee's control, such inability to perform
shall be deemed excused and no penalties or sanctions shall be imposed
as a result thereof; provided, however, that such inability to perform
shall not relieve a grantee from any obligations pertaining to refunds
and credits for interruptions in service. For the purpose of this
section, causes or events not within the control of grantee shall
include without limitation acts of God, strikes, sabotage, riots or
civil disturbances, restraints imposed by order of a governmental
agency or court, explosions, acts of public enemies, and natural disasters
such as floods, earthquakes, landslides, and fires, but shall not
include financial inability of the grantee to perform or failure of
the grantee to obtain any necessary permits or licenses from other
governmental agencies or the right to use the facilities of any public
utility where such failure is due solely to the acts or omissions
of grantee, or the failure of the grantee to secure supplies, services
or equipment necessary for the installation, operation, maintenance
or repair of the cable or telecommunications system where the grantee
has failed to exercise reasonable diligence to secure such supplies,
services or equipment.
(O1999 16)
A.
Reservation
of Grantor Rights. In addition to any rights specifically reserved
to the grantor by this chapter, the grantor reserves to itself every
right and power which is required to be reserved by a provision of
any ordinance or under the franchise.
B.
Waiver.
The grantor shall have the right to waive any provision of the franchise,
except those required by federal or state law or regulation, if the
grantor determines: (1) that it is in the public interest to do so,
and (2) that the enforcement of such provision will impose an undue
hardship on the grantee or the subscribers. To be effective, such
waiver shall be evidenced by a statement in writing signed by a duly
authorized representative of the grantor. Waiver of any provision
in one instance shall not be deemed a waiver of such provision subsequent
to such instance nor be deemed a waiver of any other provision of
the franchise unless the statement so recites.
(O94-026; O1999 16; O2005 5)
