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Ordinance 2043CITY OF ALAMEDA ORDINANCE NO. 2043 New Series AN ORDINANCE OF THE CITY OF ALAMEDA RELATING TO THE CONSTRUCTION, OPERATION, REGULATION AND C;QNTROL OF CABLE TELEVISION SYSTEMS WITHIN THE CiWY'S TERRITORIAL LIMITS BE IT' AINED BY THE COUNCIL OF THE CITY OF ALAMEDA that: Section 1 Short Title This ordinance shall be known and may be cited as the "Alameda Cable Television Ordinance." Section 2 . Unless it is apparent from the context that it has a di erent meaning, each of the following words and phrases has the m ning herein stated wherever it is used in this franchise, that i 2.1 CITY: The City of Alamed 2.2 COUNCIL: The Council of th y. 2.3 FRANCHISE PROPERTY. All prope y retained by the Grantee in, along and across streets unde \'l, of a franchise or business license. 2.4 GRANTEE: The person or corporatia franchise or business license is granted by thor any person or corporation to which it may th lawfully transferred and which has filed w cil an accep- tance and bond or deposit referreti s 3.4 and 7.4 hereof. 2.5 STREET: The surface of, and the space above and below any public street, road, highway, freeway, lane, alley, court, sidewalk, parkway, river, other public place or utility easement, or any other area under control of the City, now 3/17/81 of the State of California. e Cit or hereafter existing as such within the Franchise Area. Section 3 Franchise Grant 3.1 AUTHORITY TO GRANT FRANCHISES OR BUSINESS LICENSES FOR CABLE TELEVISION. Any franchise or business license for the construction, maintenance and operation of cable television systems using the public streets, utility easements, other public rights of way or places shall conform to the provisions of this ordinance. 3.2 INCORPORATION BY REFERENCE. (A) The provisions of this ordinance shall be incorporated by reference in any agreement or license approved hereunder. (B) The provisions of any proposal submitted and accepted by the City shall be incorporated Ly reference in any applicable franchise or license. 3.3 NATURE AND EXTENT OF THE GRANT. Any franchise granted hereunder by the City shall authorize the grantee, subject to the provisions herein contained, (A) To engage in the business of cable television service the distribution and sale of such service to subscribers within the City of Alameda; (B) To erect, install, construct, replace, reconstruct, maintain and retain poles, coaxial cable, conductors, amplifiers, television antennae, supporting structures and appurtenances in, along and across streets or other public places within the City of Alameda; (C) To maintain and operate said franchise properties for the origination, collection, transmission, amplification, distri- bution and reception of electrical or radiant energy. -2- 3.4 DURATION OF GRANT. A franchise shall be effective on the 31st day after approval of the franchise agreement or license, provided that the Grantee has filed, within twenty (20) days after such effective date, a written instrument, addressed to the Council, accepting a franchise or license and, agreeing to comply with all of the provisions hereof. A franchise or license shall expire fifteen (15) years after acceptance thereof unless sooner terminated by ordinance in the event: (A) The Grantee fails to comply with any provisions here- of; or (B) Any provision hereof becomes invalid or unenforceable and the Council expressly finds that such provision constituted a consideration material to the grant of a franchise or license; or (C) The City, or its designee, purchases the property of the Grantee, as provided herein; provided, however, that the Grantee shall be given thirty (30) days notice of any termination proceedings. Section 4 Construction of Franchise 4.1 INTERPRETATION. Unless otherwise specifically prescribed herein the following provisions shall govern the interpretation and construction of a franchise: (A) The singular number includes the plural and the plural number includes the singular. (B) Time is of the essence. The Grantee shall not be relieved of its obligation to promptly comply with any provision hereof by any failure of the City to enforce prompt compliance with -3- the same or any other provision. (C) Any right or power conferred, or duty imposed upon any officer, employee, department, or board of the City, is sub- ject to transfer by operation of law to any other officer, employee, department or board of the City. (D) The Grantee shall have no recourse whatsoever against the City for any loss, costs, expense or damage, arising out of any provision or requirement of a franchise or the enforcement thereof. (E) A franchise does not relieve the Grantee of any re- quirement of the City Charter or of any ordinance, rule, regulation, or specification of the City, including, but not limited to any requirement relating to street work, street excavation permits, or the use, removal or relocation of property in streets. (E) The granting or a zranchise or any of the provisions contained herein shall not be construed to prevent the City from granting any identical or similar franchise to any person or corporation other than the Grantee. (B) The word "franchise" shall also mean a "business license." 4.2 LIMITATIONS UPON GRANT. (A) No privilege or exemption is granted or conferred by a rranchise except those specifically prescribed herein. (B) Any privilege claimed under a franchise by the Grantee in any street shall be subordinate to any prior lawful occupancy of the street. -4- (C) A franchise is a privilege to be held in personal trust by the original Grantee. It cannot in any event be trans- ferred in'part, and it is not to be sold, transferred, leased, assigned, or disposed of as a whole, either by forced sale, merger, consolidation, or otherwise, without prior consent of the City expressed by ordinance, and then only under such conditions as may be therein prescribed; provided, however, that no such consent shall be required for any transfer in trust, mortgage, or other hypothecation, as a whole, to secure an indebtedness. (D) The Grantee shall at all times comply with all appli- cable present and future rules of the Federal Communications Commission. (E) The Grantee, within sixty (60) days of the acceptance of a franchise, shall demonstrate compliance with all applicable Federal Communications Commission regulations. (F) The Grantee, within sixty (60) days of the acceptance of a franchise, shall demonstrate compliance with all State regula- tions, if any apply. (G) Nothing contained in this Ordinance shall be deemed to prohibit in any way the right of the City to levy nondiscrimi- natory occupational license taxes on any activity conducted by Grantee. (H) Nothing contained in this Ordinance shall b-; deemed to prohibit in any way the right of the City of provide, for con- sideration, rights or privileges in addition to those set forth in Section 3.3. -5- 4.3. RIGHTS RESERVED TO CITY. There is hereby provided and reserved to the City every right and power which is required to be herein reserved or provided by any provision of the Charter of the City or its ordinances, as amended, and the Grantee by its acceptance of a franchise agrees to be bound thereby and to comply with any action or requirement of the City in its exercise of any such right or power. Neither the granting of a franchise nor any provision hereof shall constitute a waiver or bar to the exercise of any governmental rignz or power of the City, including regulation of subscription rates as permitted by law. Section 5 Operation and Service 5.1 ESTABLISHMENT OF SERVICE. Subject to such regulations as may be adopted by the Council, the Grantee shall install cable television service to all persons making a timely and bonafide request for such service at any location within the service area. After the Grantee shall have established service pursuant to a franchise in any area of the City, such service shall not be suspended or abandoned unless such suspension — abandonment be authorized or ordered by the Council. 5.2 REPLACEMENT FRANCHISE. The service provided by the Grantee under a franchise may be required to continue uninterrupted beyond the expiration or cancellation of a franchise. To assure continued service to the subscribers, application for a replacement franchise shall be submitted at least twelve (12) months prior to the expira- tion date thereof. If the Grantee fails to make said application, the City may commence procedures for the issuance of another franchise(s). -6- 5.3 EQUIPMENT AND SERVICE REQUIREMENTS. (A) Technical S tandards . The cable television system authorized hereunder shall: (1) Conform to the Class I Channel Technical Standards set forth by the Federal Communications Commission as the minimum requirements on all channels carried by the system. (2) Conduct proof -of- performance tests in a manner prescribed by the Council. (B) Basic Services The cable television system authorized hereunder shall: (1) Relay to all subscriber terminals those broadcast signals required by the Federal Communications Commission; (2) Distribute in color all television signals which it receives in color; (3) Have a minimum downstream capacity of 54 channels within 24 months of the effective date of the franchise. Failure to comply with this requirement will result in penalties assessed hereunder; (4) Provide a minimum of one combined access channel initially to be expanded to at least four public access channels, one channel each for municipal, educational, public and leased access, as required by the Council. (5) Have two -way capacity within 24 months of the effective date of a franchise or at such time as may be extended by the Council. (6) Maintain and have available for public use at least the minimal equipment and facilities necessary for -7- the production and programming of a public access channel. A facility shall be located within the franchise area unless otherwise authorized by the Council. (C) Non -basi Services A cable television system authorized hereunder may: (1) Transmit original cablecast programming not received through television broadcast signals; (2) Transmit television pictures, film and video -tape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers or subscribers; (3) Transmit any additional broadcast signals permitted by the Federal Communications Commission. (4) Transmit and receive all other signals; digital, voice and audio - visual, etc; (5) Transmit, on a nondiscriminatory basis and for a reasonable rate, burglar, fire, or other nonbroadcast services which customers request from persons supplying those services. (D) Municipal Services (1) With respect to local government access, the Grantee shall provide, at the request of the Council and upon City reimbursement of Grantee's actual production costs, in excess of five (5) hours a week, use of Grantee's studio, equipment and technical services for production of live and video -taped municipal programs, subject to scheduling requirements of the Grantee; -8- (2) With respect to the basic television service, the Grantee shall provide a drop and all basic subscriber services, without cost, when the system passes such facilities and as designated by the Council, to: (a) Public schools and community colleges within the City, and (b) Buildings owned and controlled by the City, used for public purposes and not for residential use. (E) Public Benefit Services At such time as the Council determines it to be in the public interest, the Grantee may be re- quired, without increasing subscription rates, to provide: (1) Viewing centers and /or communications thereto; (2) Connection to municipal access studios; (3) Connection to education facilities; (4) Connection to public health facilities; (5) Interconnection with other communications systems; (6) Program origination, including children and senior citizen programs. (7) Interconnection between municipal and /or educa- tional facilities. (F) Interconnection The Grantee will be required to pro- vice interconnection to City franchisees and other nearby cable television systems at the time and to the extent and in the manner specified by the Council, after the Council has conducted public hearings on the matter to determine the need and viability of an interconnect system. Costs of said interconnections shall not be passed on to subscribers without permission of the Council. -9- (G) System Consolidat The Grantee shall obtain Council approval prior to the consolidation and /or elimination of any headend. (H) Emergen The Grantee shall design and con- struct the system to provide for a restricted audio override of all audio channels during emergencies. An emergency power source shall be provided by the Grantee at the headend of the system. 5.4 CUSTOMER SERVICE. Subject to such regulations as may be adopted by the Council pursuant hereto, the Grantee shall: (A) Maintain a high standard of courtesy in customer relations at all times; (B) Maintain a log showing the date, approximate time and duration, type and probable cause of all headend, trunk or distri- bution line service failures due to causes other than routine testing or maintenance; such log shall be subject to review by the Council; (C) Maintain a local business office with toll free telephone numbers so that subscribers may report service outages or deficiencies at any time. The office shall maintain an adequate staff such that subscribers may transact all necessary business, including payment of bills, during regular business hours; (D) Keep a written record of all complaints showing date, subscriber's name and address, nature of complaint and action -10- taken by the Grantee. (E) Restore any interruption in service within twenty- four (24) hours notice thereof, excepting where caused by fire, earthquake or other calamity. 5.5 SUBSCRIBERS PRIVACY. (A) The monitoring of any subscriber terminal without specific written authorization of the subscriber is prohibited. (B) Listings of subscribers' names and addresses may not be sold or otherwise released for any purpose without specific written authorization of the individual subscriber. 10 -a Section 6 Street Work 6.1 LOCATION OF FRANCHISE PROPERTIES. Franchise property shall be constructed or installed underground only after obtaining an excavation permit therefor. 6.2 REMOVAL OR ABANDONMENT OF FRANCHISE PROPERTY. (A) In the event the use of any franchise property is permanently discontinued, or no franchise has been obtained there- for, upon expiration of or within 12 months after any termination of a franchise, the Grantee shall promptly remove from the streets all property involved, other than any the Council may permit to be abandoned in place. (B) Franchise property to be abandoned in place shall be abandoned in such manner as the Council shall prescribe. Upon abandonment of any franchise property in place, the Grantee shall submit to the Council an instrument, satisfactory to the City Attorney, transferring to the City the ownership of such property. 6.3 CHANGES REQUIRED BY PUBLIC IMPROVEMENTS. The Grantee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street, or remove from any street any franchise prop- erty when required by the Council by reason of traffic conditions, public safety, street vacation, freeway construction, change or establishment of street grade, or the construction of any public` improvement or structure by any governmental agency acting in a governmental capacity; provided that Grantee shall in all cases have the privileges and be under the obligations as to the aban- donment of franchise property in place which are provided in Section 6.2 hereof. -11- 6.4 FAILURE TO PERFORM STREET WORK. Upon any failure of the Grantee to commence, pursue or complete any work required by it by law or by the provisions of a franchise to be done in any street, the Council, at its option and according to law, may cause such work to be done and the Grantee shall pay to the City the cost thereof in the itemized amounts reported by the Council to the Grantee, within 30 days after receipt of such itemized report. 6.5 UNDERGROUND FACILITIES. Unless otherwise authorized by the Council, in those areas and portions of the City where utility lines are now underground, or may hereafter be placed underground, the Grantee shall likewise install or relocate franchise property underground. Subject to approval by the Council, incidental appurtenances such as amplifier boxes and pedestal mounted terminal boxes may be placed above ground, but shall be of such size and design and shall be so located as not to be unsightly or hazardous to the public. 6.6 CONDITIONS ON STREET OCCUPANCY. (A) Any pavements, sidewalks, curbing or other paved area taken up or any excavations made by a Grantee shall be done under permits issued for the work by the proper officials of the City, and under their supervision and direction, and shall be done in such manner as to give the least inconvenience to the inhabitants of the City. A grantee shall, at its own cost and expense, and in a manner approved by the proper City officials, replace and re- store any such pavements, sidewalks, curbing or other paved areas in as good a condition as before the work involving such disturb- ance was done, and shall also make and keep full and complete -12- plats, maps and records showing the exact locations of its facilities located within the public streets, ways and easements of the City. These maps shall be available for inspection at any time during business hours by City officials. (B} A 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 same, and the Grantee shall have the authority to require such payment in advance. The Grantee shall be given not less than 48 hours' advance notice to arrange for such temporary wire changes. (C) A Grantee shall have authority to trim the trees upon and overhanging the public streets so as to prevent the branches of such trees from coming in contact with the wires and cables of the Grantee, except that, at the option of the City Council, such trimming may be done by it or under its supervision and direction -13- at the expense of the Grantee. (D) In all sections of the City where wires, cables, and other system appurtenances are mounted above ground, every reason- able effort shall be made to minimize obstruction of the view of residents, and every reasonable effort shall be made to preclude an unsightly system installation. 6.7 NEW SUBDIVISIONS. A.Grantee shall install underground conduit necessary for delivery of service required by Section 5.3 at the time streets are installed by the subdivider thereof. A Grantee shall enter into contracts with the subdivider's con- tractors as may be necessary therefor. The City will require the cooperation of subdividers in the opening of joint use trenches and backfilling and allow provisions for the conduit on the appropriate subdivision map. All conduit so installed shall be- come the property of the City and a Grantee shall execute an instrument of conveyance to the City. Section 7 Compensations and Guarantee to the City 7.1 ANNUAL PAYMENTS TO THE CITY. (A) By its acceptance of a franchise, the Grantee agrees to pay to the City, annually, in lawful money of the United States, five percent (5%) of the total gross receipts collected or received, or-in any manner gained or derived by the Grantee in each calendar -14- year, or portion thereof, from the properties, operations, and business referred to in Section 3.3 hereof, unless restricted by higher authority. (B) Checks for all such payments shall be made payable to the City Treasurer, quarterly payments for each quarter or portion thereof shall be submitted to the Treasurer on or before March 1, June 1, September 1 and December 1cf the applicable year. (C) Each payment shall be accompanied by a statement, in duplicate, verified by the Grantee or by a general officer or other duly authorized representative of the Grantee, showing in such form and details as the Council may require from time to time the facts material to a determination of the amount due. (D) The payment made to the City by the Grantee pursuant to this section for any calendar year shall be in lieu of any license fee or business tax, prescribed by the City for the same period, bit only to the extent of such payment. 7.2 CITY USE OF FACILITIES. The City shall have the right, free of charge, of installing, maintaining and operating upon antenna towers and poles, or in underground ducts of the Grantee, antenna, amplifiers, coaxial cable, wire, fixtures and appurtenances necessary for a City communication system; such equipment to be installed, maintained and operated so as not to interfere with property or operations of the Grantee. In addition, the City shall have use, free of charge, of at least one channel as specified in Section 5.3 hereof, with additional channels to be made available as necessary, with said need to be established by the - Council. -15- 7.3 PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE. The Grantee shall at all times maintain in full force and effect a policy of insurance in such form as the City may require, executed by an insurance company authorized to write the required insurance and approved by the Insurance Commissioner of the State of California, insuring the payment of any sums which the Grantee, or City, its officers, boards, commissioners, agents and employees may become obligated to pay by reason of any liability imposed upon them by law for damages because of bodily injury or death, or injury to or destruction of property that may result to any person or property arising out of the construction, operation or maintenance of any facilities pursuant to a franchise. The sums, payment of which shall be so insured, shall not be less than $2,000,00:; combined single limits including bodily injury liability and property damage liability. Such policy of insurance shall be filed with the Council, in duplicate, and approved as required by City ordinance. 7.4 FAITHFUL PERFORMANCE BOND. The Grantee shall, at the time of acceptance of a franchise, file with the Council, and at all times thereafter maintain in full force and effect, an acceptable corporate surely bond, in duplicate, in the amount of $300,000, effective for the entire term of a franchise, and conditioned that in the event the Grantee shall fail to comply with any one or more -16- of the provisions of a franchise, then there shall be recoverable jointly and severally from the principal and surety of such bond, any damages suffered by the City as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of property as prescribed by Sections 7.1, 7.5 or 6.2 hereof which may be in default, up to the full amount of the bond; said condition to be a continuing obligation for the duration of a franchise and thereafter until the Grantee has liquidated all of its obligations with the City that may have arisen from the acceptance of a franchise by the Grantee or from its exercise of any privilege herein granted. Neither the provisions of this Section, any bond accepted by the City pursuant thereto, nor any damages recovered by the City thereunder shall be construed to excuse faithful performance by the Grantee or to limit the liability of the Grantee under a franchise or for damages, either to the full amount of the bond or otherwise. If, at any time during the term of a franchise, the condi- tion of the corporate surety shall change in such a manner as to render the bond unsatisfactory to the City the Grantee shall replace such Bond by a Bond of like amount and similarly condi- tioned, issued by a corporate surety satisfactory to the City. In the event the Grantee's obligations under a franchise shall so warrant, the Council, from time to time, may authorize or require appropriate adjustments in the amount of the Bond. -17- 7.5 SECURITY FUND. (A) Within thirty (30) days after the effective date of a franchise, the Grantee shall deposit into a bank account, established by the City, and maintain on deposit throughout the term of the franchise, the sum of Ten Thousand Dollars ($10,000) as security for the faithful performance by it of all the provi- sions of the franchise, and compliance with all orders, permits and directions of any agency of the City having jurisdiction over its acts or defaults under the franchise, and the payment by the Grantee of any claims, liens, payments and taxes due the City which arise by reason of the construction, operation or maintenance of the system. The Grantee shall have the right to earn interest on funds deposited in the Security Fund. (B) Within thirty (30) days after notice to it that any amount has been withdrawn by the City from the security fund pursuant to Subdivision (A) of this Section, the Grantee shall deposit a sum of money sufficient to restore such security fund to the original amount. (C) If the Grantee after ten (10) days notice to pay to the City any taxes or payments due and unpaid; or, fails to repay to the City, within such ten (10) days, any damages, costs or expenses which the City shall be compelled to pay by reason of any act or default of the Grantee in connection with a franchise; or fails after thirty (30) days notice of such failure by the City to comply with any provision of the franchise which the City reasonably determines can be remedied by an expenditure of the -18- security, the City may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the City shall notify the Grantee of the amount and date thereof. (D) The security fund deposited pursuant to this Section shall become the property of the City in the event that a franchise is cancelled by reason of the default of the Grantee or revoked for cause. The Grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit at the expiration of the term of the franchise, or upon termination of the franchise at an earlier date, provided that there is then no outstanding default on the part of the Grantee. (E) The rights reserved to the City with respect to the security fund are in addition to all other rights of the City whether reserved by a franchise or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the City may have. 7.6. INDEMNIFICATION TO CITY. The Grantee shall indemnify the City, its officers, boards, commissions, agents, and employees, -19- against all claims, demands, actions, suits and proceedings by others and against all liability to others, and against any loss, cost and expense resulting therefrom, arising out of the exercise or enjoyment of a franchise, irrespective of the amount of the bond designated in Section 7.4 hereof. 7.7 INSPECTION OF PROPERTY AND RECORDS. At all reasonable times, the Grantee shall permit any duly authorized representative of the Countil to examine all franchise property, together with c any appurtenant property, of the Grantee situated within or with- out the City, and to examine and transcribe any and all maps and other records kept or maintained by the Grantee or under its control w: =ich treat of the operations, affairs, transactions or property of the Grantee with respect thereto. If any of such maps or records are not kept in the City, or upon reasonable request made available in the City, and if the Council shall determine that an examination thereof is necessary or appropriate to the performance of any of its duties, then all travel and r maintenance expense necessarily incurred in making such examination shall be paid by the Grantee. The Grantee shall prepare and furnish to the Council, at the times and in the form prescribed by the Council, 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 duties of the Council in connection with a franchise. Section B Purchase of Grantee's Facilities or Other Facilities -20- 8.1 PURCHASE. (A) At any time following the period provided by Sec- tion 5.3 (B) (3), should Grantee fail to provide the service required by Section 5.3 for a period of 90 days, Grantee, upon 30 days written notice, shall convey, upon tender, to City or its designee all of the Alameda facilities. (B) "Tender" shall mean the fair market value of Grantee's facilities, exclusive of the value of the rights granted pursuant to a franchise, plus the cost of purchases made pursuant to Sec- tion 8.2 and installations made pursuant to Section 6.7. (C) Upon thirty (30) days notice prior to the expiration of a franchise City may purchase the franchise property by a tender within ninety (90) days after the expiration of the franchise. Said notice shall extend the franchise for the tender period. 8.2 EXISTING CONDUIT. (A) Grantee shall purchase such conduit and appurtenances as presently exist under streets for cable television purposes. Said conduit and appurtenances shall at such time become the property of the City and Grantee shall execute an instrument of conveyance to the City. (B) Grantee shall not be required to pay more'for any purchase under Subsection (A) than the subdivider's construction cost plus the legal rate of interest. (C) In the event Grantee is precluded by nonfinancial circumstances beyond its control from the purchase(s) required -21- by Subsection (A), Grantee shall lease existing conduit, at reasonable rates. If that is also not possible, Grantee may in- stall its own underground cable and conduit. (D) City will lease back to Grantee all cable conveyed to it by Grantee for a sum agreed upon and prescribed by a franchise agreement. Such payment shall be in addition to payment made under Section 7.1, 8.3 CITY ASSISTANCE. Grantee may employ the services of Grantor, or its agencies, in the construction, maintenance or administration of the facilities established hereunder. Con- tracts for such services shall include overhead costs. E� Section 9 . Fines The City may levy fines for failure i L2 to comply with the provisions of this Ordinance not to exceed j z $500 a day. U) c a Section 10 . This ordinance shall be in full force and > \�: 0 \ U effect from and after the expiration of thirty (30) days from C1 " CL Q , the date of its final passage. Attest: City Clerk Presid' Officer of the Council -22- I, the undersigned, hereby certify that the foregoing Urdinance was duly and regularly adopted and passed by the Council of the City of Alameda in regular meeting assembled on the 17th of March, 1981, by the following vote, to wit: AYES: Councilmen Sherratt, Stone, and Tillman - 3 NOES: Councilman Diament and President Corica - 2. ABSENT: None. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the .Fficial seal of said City this 18th day of March, 1981. City Clerk of the City of Alameda