Title 15 PUBLIC UTILITIES
Editor's Notes
For the statutory provisions regarding public utilities in general see the California Public Utilities Code. For the provisions regarding the granting of franchises by local governments see Cal. Pub. U.C. § 6001 et seq.
Chapter 15.04 CONTROL
Editor's Notes
For the statutory provisions regarding surrender of municipal control of public utilities to the State Public Utilities Commission see Cal. Pub. U.C. § 2901 et seq.
15.04.010 RETENTION PROCEDURE.
Whenever in the opinion of the Council, the public interest requires the submission to the qualified electors of city, or whenever by initiative petitions duly presented to council, pursuant to the provisions of the act hereinafter referred to, requiring it to submit to the qualified electors of the City the question of whether or not the City shall retain the powers of control vested in it respecting all public utilities, or any public utility, or of the surrender of such powers to the Public Utilities Commission of the state, in case the qualified electors thereof have voted to retain such powers, or the question of whether city shall reinvest such powers in city, in case the qualified electors thereof have heretofore or hereafter voted to surrender such powers, the City, its council and other officers, and the qualified electors thereof, shall have the power to and shall conduct the proceedings therefor in accordance with the procedure provided in that certain act of the state legislature entitled "An Act to Provide for Submitting to the Qualified Electors of Every City and County, or Incorporated City or Town in this State the Question Whether Such City and County, or Incorporated City or Town, Shall Retain the Powers of Control Vested Therein Respecting All or any Public Utility, Providing Further for Elections Thereafter to Surrender Such Powers in the Case the Qualified Electors of Any Such City or County, or Incorporated City or Town, Shall Have Voted to Retain Such Powers or to Reinvest Such City and County, or Incorporated City or Town, with Such Powers, in Case the Qualified Electors Thereof Have Voted to Surrender Such Powers," approved June 7, 1915 (Statutes 1915, pages 1273 to 1280, both inclusive), which sections of said act are incorporated herein and made a part hereof for reference thereto the same as if said sections were set forth herein in full; provided, however, that where any of the provisions of said act are in conflict with any of the provisions of the City charter, then the provisions of the charter shall supersede and control.
Chapter 15.08 FRANCHISE—GENERAL PROVISIONS
Editor's Notes
For the provision of the City Charter regarding the granting of franchises see Section 5.26.
15.08.010 DEFINITIONS.
Whenever, in Chapters 15.08 through 15.16, the words or phrases hereinafter defined in this section are used, they shall have the respective meanings assigned to them in the following definitions unless in the given instance, the context wherein they are used clearly imports a different meaning:
(1) "Construct and use" means to construct, erect, install, lay, operate, maintain, use, repair or replace;
(2) "Gas" means natural or artificial gas, or a mixture of natural and artificial gas;
(3) "Grantee" means the person to whom the franchise contemplated in Chapters 15.08 through 15.16 has been granted, and his or her lawful successors or assigns;
(4) "Poles, wires, conduits and appurtenances" means poles, towers, supports, wires, conductors, cables, guys, studs, platforms, crossarms, braces, transformers, insulators, conduits, ducts, vaults, manholes, meters, cutouts, switches, communication circuits, appliances, attachments, appurtenances and any other property located, or to be located, in, upon, along, across, under or over streets of the City and used, or useful, in the transmitting and/or distributing of electricity, or in the transmission of telephone or telegraph messages;
(5) "Streets" means the public streets, ways, lanes, alleys, highways and similar places as the same now, or may hereafter, exist within the City.
15.08.020 PREREQUISITES.
Before any grantee shall have the right or privilege to lay and use, or construct and use, any telegraph or telephone wires, or to operate street or interurban railroads, or automobile bus services, or to construct and use, or to lay and use gas pipe, for the purpose of carrying gas or light, heat or power, or to erect poles, wire, conduits and appurtenances for transmitting electricity for lights, heat or power, along or upon any street, or to exercise any other privilege whatever for which a franchise may be granted, the City shall be required to demand from such grantee the payment of a franchise fee as hereinafter set forth, and the observances by the grantee of all of the terms, provisions, and conditions to be set forth in the ordinance granting the franchise, as hereinafter indicated, and proceedings must be had under the provisions of either Chapters 15.12 or 15.16.
15.08.030 TWO FORMS OF PROCEDURE.
The procedure for the granting of franchises hereunder is set forth in Chapters 15.12 and 15.16. The procedure indicated in Chapter 15.12 shall apply to franchises applied for, for all purposes indicated in Section 15.08.020.
The procedure for the granting of franchises hereunder as set forth in Chapter 15.16, is an alternate procedure which may be used with reference to the application, hearing and granting or denial of franchises to construct and use, or to lay and use, gas pipe for the purpose of carrying gas or light, heat or power, or to use, or construct and use, poles, wires, conduits and appurtenances for the transmitting of electricity for all purposes, under, along, across or upon the streets of the City, and either the procedure set forth in Chapter 15.12, or the procedure set forth in Chapter 15.16, may be used at the discretion of council for such purposes.
Chapter 15.12 substantially adopts the provisions of the Statutes of 1905 of the state of California, page 777, as amended, known as the "Franchise Sales Law."
Chapter 15.16 substantially adopts the provision of the Statutes of 1937 of the state of California, known as "The Franchises Act of 1937."
Chapter 15.12 FRANCHISE—PROCEDURE
15.12.010 APPLICATION—ADVERTISEMENT PUBLICATION.
An applicant for any franchise or privilege mentioned in Chapter 15.08 shall file with the Council an application in writing; thereupon council shall cause to be advertised the fact of such application, together with a statement that it is proposed to grant the same, in a newspaper of general circulation in the City. Such advertisement must state that bids will be received for such franchise, and that it will be awarded to the highest bidder, and the same must be published in such newspaper once a day for ten successive days, or as often during said period as such newspaper is published, if it be a daily newspaper, and if there is no daily newspaper published in the City, then it shall be published in a weekly newspaper once a week for four successive weeks, and in either case the full publication must be completed not less than twenty, nor more than thirty, days before any further action can be taken thereon.
15.12.020 ADVERTISEMENT CONTENTS—PAYMENT OF PERCENTAGE.
Such publication must state the character of the franchise or privilege proposed to be granted, the term for which it is to be granted, and, if it is a street, railroad or automobile bus service, the route to be traversed; that sealed bids therefor will be received up to a certain hour and day named therein, and that the successful bidder and his or her assigns must, during the life of such franchise, pay to the City two percent of the gross annual receipts of the grantee to whom the franchise has been awarded, arising from its use, operation or possession. No percentage shall be paid for the first five years succeeding the date of the franchise, but thereafter such percentage shall be payable annually; and in the event such payment is not made, such franchise shall be forfeited; provided, further, that if the franchise is a renewal of a right already in existence, the payment of such percentage of gross receipts shall begin at once.
15.12.030 ESTIMATE OF RECEIPTS ON GRANT OF EXTENSION.
In case the franchise granted is an extension of an existing system of street, railroad or automobile bus service, then the gross receipts shall be estimated to be one-half of the proportion of the total gross receipts of such system which the mileage of such extension bears to the total mileage of the whole system, and such estimate shall be conclusive as to the amount of gross receipts of such extension.
15.12.040 BIDDING PROCEDURE.
Such advertisement shall also contain a statement that the franchise will be struck off, sold and awarded to the person who makes the highest cash bid therefor; provided, only, that at the time of the opening of such bid, any responsible person present or represented may bid for such franchise or privilege a sum of not less than ten percent above the highest sealed bid therefor, and such bid so made may be raised not less than ten percent by any other responsible bidder or bidders, and such bidding may so continue until finally such franchise is struck off, sold and awarded by council to the highest bidder therefor in lawful money of the United States of America. Each sealed bid shall be accompanied with cash or a certified check payable to the City treasurer for the full amount of such bid, and no sealed bid shall be considered, unless such cash or check is enclosed therewith, and the successful bidder shall deposit at least ten percent of the amount of his or her bid with the City Clerk before the franchise has been struck off to him. If he or she has failed to make such deposit immediately, then, and in that case, his or her bid shall not be received, and shall be considered as void, and such franchise shall then and there be again offered for sale to the bidder who makes the highest cash bid therefor, subject to the same conditions as to the deposit, as abovementioned. Said procedure shall be had until such franchise is struck off, sold and awarded to a bidder who shall make the necessary deposit of at least ten percent of his or her bid therefor, as herein provided. Such successful bidder shall deposit with the City Clerk, within twenty-four hours of acceptance of his or her bid, the remaining ninety percent of the amount thereof, and in case he or she has then failed to do so, then such deposit theretofore made, shall be forfeited, and such award of such franchise shall be void, and such franchise shall then and there by council be again offered for sale to the highest bidder or bidders therefor, in the same manner, and under the same restrictions as hereinbefore provided, and in case such bidder has failed to deposit with the City Clerk the remaining ninety percent of his or her bid within twenty-four hours after its acceptance, the award to him or her shall be forfeited, and no further proceedings for a sale of such franchise shall be had, unless the same is readvertised and again offered for sale, in the manner hereinbefore provided.
15.12.050 WORK COMMENCEMENT—FORFEITURE FOR DELAY.
Work to erect or lay telegraph or telephone wires, to construct street or interurban railroads, to lay gas pipes for the purpose of carrying gas or light, heat or power, to lay water pipes for the purpose of carrying water, to erect poles or wires for transmitting electricity for light, heat or power, along or upon any street, or to exercise any other privilege whatever, a franchise for which has been granted in accordance with the terms hereof, shall be commenced in good faith within not more than four months from the granting of any such franchise, and if not so commenced within such time, franchise so granted shall be declared forfeited. Work to construct street or interurban railways under such franchise shall be completed within not more than three years from the date of granting such franchise, and if not so completed within such time such franchise so granted shall be forfeited; provided, that, for good cause shown, the City Council may, by resolution, extend the time for completion of such work in any case mentioned in this section for a period not to exceed three months. Work under any franchise shall be prosecuted diligently and in good faith, so as to meet and fill reasonable needs of the inhabitants of the territory for the service for which the franchise is granted.
15.12.060 BOND.
The successful bidder for any franchise or privilege struck off, sold and awarded under Chapters 15.08 through 15.16 shall file with the Council within five days after such franchise has been awarded, a bond running to city, with at least two good and sufficient sureties, to be approved by council, or with a satisfactory corporate surety, in a penal sum by the City to be prescribed, and set forth in the advertisement for bids, conditioned that such bidder or bidders shall well and truly observe, fulfill and perform every term and condition of such franchise, and that in case of any breach of condition of such bond, the whole amount of the penal sum therein named shall be paid, and upon the filing and approval of such bond, such franchise shall, by council, be granted by ordinance to the person to whom it has been struck off, sold or awarded, and in case such bond has not been so filed, the award of such franchise shall be set aside, any money paid therefor shall be forfeited, and such franchise shall, in the discretion of council, be readvertised and again offered for sale in the same manner, and under the same restrictions, as hereinbefore provided.
15.12.070 CLAUSE RESTRICTING COMPETITION FORBIDDEN.
No clause or condition of any kind shall be inserted in any franchise or grant offered or sold under this chapter which directly or indirectly restricts free and open competition in bidding therefor, and no clause or provision shall be inserted in any franchise offered for sale, which in any way favors one person as against another, in bidding for the purchase thereof.
15.12.080 TERMS.
The term of each franchise or privilege shall be fixed for such period as the City Council in its discretion deems advisable.
Chapter 15.16 GAS AND ELECTRIC FRANCHISE
Editor's Notes
For the statutory provisions regarding the alternative procedure for Gas, Electric and Water Franchises see Cal. Pub. U.C. § 6201 et seq.
15.16.010 APPLICATION—CONTENTS.
An applicant for franchise for the use, construction and use, of poles, wires, conduits and appurtenances for transmitting and distributing electricity for all purposes, and for the use, laying and use, of pipes and appurtenances for transmitting and distributing gas for any and all purposes, under, along, across, or upon the streets of city, in lieu of the provisions of Chapter 15.12, may be required to follow the procedure set forth in this chapter. Such applicant shall state in his or her application, the following:
(1) The name of the applicant;
(2) The purpose and term, whether definite or indeterminate, for which the franchise applied for is desired;
(3) That the applicant, if granted the franchise, will pay to the City during the life of such franchise, two percent of the gross annual receipts of applicant arising from the use, operation, or possession of such franchise; provided, however, that such payment shall in no event be less than one percent of the gross annual receipts of applicant derived from the sale within the limits of city of the utility service for which such franchise has been awarded; provided, further, if the application is for a franchise complementary to a franchise derived under Section 19 of Article XI of the Constitution of California (as said section existed prior to its amendment on October 10, 1911) then, in lieu of either of the aforesaid percentages, applicant will pay a sum annually which, if the application is for an electric franchise, shall be equivalent to two percent of the gross annual receipts of such applicant arising from the use, operation or possession of such franchise; provided, however, that such payment shall in no event be less than a sum which shall be equivalent to one-half percent of the gross annual receipts derived by applicant from the sale of electricity within the City under both such electric franchises; or, if the application is for a gas franchise, shall be equivalent to two percent of the gross annual receipts of applicant arising from the use, operation or possession of such franchise; provided, however, that such payment shall in no event be less than a sum which shall be equivalent to one-half percent of the gross annual receipts derived by applicant from the sale of gas within the City under both such gas franchises.
15.16.020 APPLICATION—NOTICE OF HEARING.
Upon receipt of such application, the Council may pass its resolution declaring its intention to grant the franchise applied for, stating the character thereof, setting forth a notice of the day, hour and the place when and where any and all persons having any objections to the granting thereof may appear before the Council and be heard thereon, and directing the City Clerk to publish such notice at least once, within fifteen days after the passing of such resolution, in a newspaper of general circulation within the City. The time fixed for such hearing shall be not less than twenty, nor more than sixty, days after the date of the passage of such resolution. Such notice shall state that the grantee of such franchise and his or her successors and assigns, will, during the life of franchise, pay to the City the percentage specified in such application, and that the same will be paid annually from the date of the granting of such franchise, and in the event such payment has not been made, such franchise will be forfeited. Such notice shall also designate the term, whether definite or indeterminate, for which the franchise is proposed to be granted.
15.16.030 APPLICATION—OBJECTIONS—GRANTING.
At any time not later than the hour set for the hearing of objections, any person interested may make written protest stating objections against the granting of such franchise. Such protest must be signed by the protestant and be delivered to the City Clerk. At the time set for the hearing of objections, the Council shall proceed to hear and pass upon all protests so made, and its decision shall be final and conclusive, subject to the right of referendum of the people. The council may adjourn such hearing from time to time. If no protest in writing has been delivered to the City Clerk up to the hour set for hearing, or such protests as have been filed, have been heard and determined by the Council to be insufficient or have been overruled or denied, the Council may grant such franchise. Such franchise shall be granted by ordinance adopted in the manner prescribed by law for the enactment of ordinances by the Council.
15.16.040 TERM.
Every franchise granted pursuant to this chapter, shall, except when a definite term therefor has been specified in the ordinance granting the same, be indeterminate; that is to say, every such franchise shall endure in full force and effect until the same is, with the consent of the Public Utilities Commission of the state, voluntarily surrendered or abandoned by its possessor, or until the state, or some municipal or public corporation thereunto duly authorized by law, has purchased by voluntary agreement, or has condemned and taken, under the power of eminent domain, all property actually used and useful in the exercise of such franchise, and situate within the territorial limits of the City, or until such franchise has been forfeited upon noncompliance with its terms by the possessor thereof.
15.16.050 RIGHTS CONFERRED BY FRANCHISE.
Every gas franchise granted pursuant hereto shall confer upon the grantee thereof the right to use, or to lay and use, gas pipes and appurtenances for the purpose of transmitting and distributing gas. Every electric franchise so granted shall confer upon the grantee thereof the right to use, or to construct and use, poles, wires, or conduits and appurtenances for the purpose of transmitting and distributing electricity for any and all purposes, under, along, across or upon the public streets of city.
15.16.060 ACCEPTANCE OF GRANT.
Any gas or electric franchise granted hereunder shall not become effective until written acceptance thereof by the applicant shall have been filed by the grantee thereof with the City Clerk. When so filed, such acceptance constitutes a continuing agreement of such grantee that, if and when city thereafter annexes, or consolidates with, additional territory, and all franchises, rights and privileges owned by the grantee, except a franchise derived under the provisions of Section 19 of Article XI of the Constitution of the state of California, shall likewise be deemed to be abandoned within the limits of such territory.
15.16.070 BOND.
The grantee of any gas or electric franchise granted pursuant hereto shall be required to file a bond running to the City with at least two good and sufficient sureties to be approved by the Council, or with a satisfactory corporate surety, in a penal sum to be prescribed by the Council, and to be set forth in the resolution of intention to grant such franchise conditioned that such grantee shall well and truly observe, fulfill and perform each and every term and condition of such franchise, and that, in case of any breach of condition of such bond, the whole amount of the penal sum named therein shall be taken and deemed to be liquidated damages, and shall be recoverable from the principal and sureties upon such bond. Such bond shall be filed with the City Clerk within five days after the date of granting of such franchise; and in case such bond has not been so filed or has not received the approval of the Council, such franchise shall be forfeited and any money paid to the City in connection therewith shall be likewise forfeited.
15.16.080 GRANTEE DUTIES.
The grantee of any franchise granted pursuant hereto shall:
(1) Construct, install and maintain all pipes, conduits, poles, wires and appurtenances in accordance, and in conformity, with all of the ordinances, rules and regulations theretofore or thereafter adopted by the Council in the exercise of its police powers and not in conflict with the paramount authority of the state;
(2) Pay to the City on demand the cost of all repairs to public property made necessary by any of the operations of the grantee under the franchise;
(3) Indemnify and hold harmless the City and its officers from any and all liability for damages proximately resulting from any operations under such franchise;
(4) Remove or relocate without expense to the City any facilities installed, used, and maintained under the franchise, if and when made necessary by any lawful change of grade, alignment or width of any public street, including, but not limited to, the construction of any subway or viaduct, by the City; and
(5) File with the Council within thirty days after any sale, transfer, assignment or lease of the franchise, or any part thereof, or of any rights or privileges granted thereby, written evidence thereof, certified to by the grantee or by its duly authorized officers.
15.16.090 FORFEITURE.
If the grantee of any gas or electric franchise has failed, neglected or refused to comply with any of the provisions or conditions prescribed herein, and has not within ten days after written demand for compliance, begun the work of compliance, or after such beginning, has not prosecuted the same with due diligence to completion, then the City, by the Council, may declare the franchise forfeited.
15.16.100 REPORT OF GROSS RECEIPTS.
The grantee of any gas or electric franchise granted pursuant to this chapter shall file with the City Clerk, within three months after the expiration of the calendar year, or fractional calendar year, following the date of the granting of such franchise, and within three months after the expiration of each and every calendar year thereafter, a duly verified statement showing in detail the total gross receipts of such grantee, its successors, or assigns, during the preceding calendar year, or such fractional calendar year, from the sale of the utility service for which such franchise was granted. Such grantee shall pay to city within fifteen days after the time for filing such statement, in lawful money of the United States of America, the specified percentage of its gross receipts for the calendar year, or such fractional calendar year, covered by such statement. Any neglect, omission, or refusal by such grantee to file such verified statement, or to pay such percentage at the times or in the manner hereinbefore provided, shall be grounds for the declaration of forfeiture of the franchise and of all rights thereunder.
15.16.110 PAYMENT OF EXPENSES.
The grantee of any franchise granted pursuant to this chapter shall pay to the City a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of such franchise; such payment shall be made within thirty days after the City has furnished such grantee with a written statement of such expense.
Chapter 15.20 FRANCHISE—LIABILITY
15.20.010 DEFINITIONS.
The following words whenever used in this chapter shall be construed as defined in this section:
(1) Grantee means every person holding or operating a public utility in the City under a permit, or by virtue of a franchise acquired under the constitution and laws of this state, including such franchises as may have been acquired by virtue of Section 19, Article XI of the constitution prior to its amendment on October 10, 1911, or otherwise;
(2) Public utilities shall have the meaning as defined in the Public Utilities Act of the state.
15.20.020 WORK IN STREETS.
No grantee of any permit or franchise shall ever excavate, or otherwise disturb, the surface or pavement of any street or sidewalk, for the purpose of installing, removing or replacing any pipes, poles, wires, conduits or appurtenances, or for any other purpose whatsoever without first notifying the street superintendent or city manager of his or her intention to do so. In the doing of such work the grantee shall comply strictly in all respects with the rules, regulations and ordinances of the City.
15.20.030 RESTORATION OF STREETS.
Whenever any grantee has had occasion to excavate in, or otherwise disturb, the surface or pavement of any street or sidewalk under a permit, or by virtue of any franchise, he or she shall with all reasonable diligence and dispatch refill such excavation, and replace the materials taken therefrom with due care and in proper order, and shall restore the surface and pavement, if any, to as good condition and repair, as it was before having been excavated or disturbed, so that it will be level with the surrounding surface and not have any perceptible depression or protrusion.
15.20.040 BARRIERS—LIGHTS.
While doing any work in or upon any of the streets or sidewalks, the grantee shall erect or provide proper barriers, warning flags and lights to protect the public, failing in which he or she is liable for any injuries to persons or property resulting from such neglect or failure.
15.20.050 METER BOXES.
The grantee shall make periodical inspections of the meter boxes and other apparatus maintained in connection with the operation of his or her franchise, and he or she will be liable in damages for any injuries received as a result of his or her failure to keep such boxes or other apparatus properly covered, so as to safeguard adequately the public from accident. He or she will be deemed to have had constructive notice of any defects therein.
15.20.060 LIABILITY.
Every such grantee shall be deemed to have guaranteed to save the City harmless from any and all damages for injuries to persons or property, and all costs and expenses in connection therewith, arising out of the use of the streets, sidewalks or other property, by grantee, and resulting directly or indirectly, from the operation of the grantee's franchise.
15.20.070 DEFENSE—GRANTEE RESPONSIBILITY.
In the event of any claim having been made upon the City for damages, or the filing of any suit, resulting directly or indirectly from the operation of grantee's franchise, in which the City has been joined as a party defendant, such grantee shall immediately assume and undertake the defense of such claim or suit at grantee's own cost and expense, and without cost to the City, and such grantee shall save the City harmless from any judgment that may be rendered in such case.
15.20.080 DEFENSE—FAILURE—REIMBURSEMENT.
In event of the failure, neglect or refusal of such grantee to assume the defense of any claim or suit against the City arising out of, or resulting directly or indirectly from, the operation of grantee's franchise, within ten days after written demand to do so has been made upon grantee by the City Manager, such failure, neglect or refusal constitutes an authorization and request by grantee that the City defend such claim or suit, whereupon the grantee shall be liable for the payment of any judgment rendered in such suit against the City, and shall reimburse the City for the judgment so rendered, together with all costs and expenses incurred by the City in connection therewith, together with reasonable attorney's fees; and the City shall be deemed to have an action of debt against such grantee, until such costs, expenses and fee have been paid.
Chapter 15.24 COMMUNITY ANTENNA TELEVISION FRANCHISE
Editor's Notes
For the statutory authority of cities to franchise or license the construction of a community antennae television system, see Cal. Gov. C.A. Sec. 53066.
15.24.010 DEFINITIONS.
Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter:
(1) "Agreement" means a contractual document containing the specific provisions of the Franchise granted, including referenced specifications, Franchise applications, Franchise requirements, ordinances and other related materials, and all amendments thereof.
(2) "Cable System" or "System" means a facility, 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) A facility that serves only to retransmit the Television signals of one (1) or more television broadcast stations;
(b) A facility that serves only Subscribers in one (1) or more multiple unit dwellings under common ownership, control or management unless such facility or facilities uses any public right-of-way;
(c) A facility of common carrier which is subject, in whole or in part, to the provisions of 47 U.S.C. § 201 et seq., except that such facility shall be considered a Cable System (other than for purposes of 47 U.S.C. § 541(c)) 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;
(d) A facility of a common carrier, 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; or
(e) Any facilities of any electric utility used solely for operating its electrical utility systems.
(3) "Franchise" or "Franchise Agreement" means any authorization granted hereunder in terms of franchise, privilege, permit, license or otherwise to construct, operate and maintain a CATV System in the City. Any such authorization, in whatever term granted, shall not mean and include compliance with any of the requirements of Title 5.
(4) "Franchise Area" means that area within the corporate limits of the City.
(5) "Grantee" means the person to whom a Franchise is granted pursuant hereto.
(6) "Gross Revenues" means any and all revenue derived directly or indirectly by Grantee, its affiliates, subsidiaries, parent, or any entity in which Grantee has a financial interest, from the operation of its Cable System to provide Cable Services within the City including, but not limited to, 1) all Cable Service fees, 2) Franchise Fees, 3) late fees, returned check charges, collection agency charges, 4) Installation and reconnection fees, 5) fee payments or other consideration earned by the Grantee from programmers for carriage of Cable Services to the extent consistent with generally applicable accounting principles ("GAAP"), 6) upgrade and downgrade fees, 7) advertising revenue calculated consistent with GAAP, 8) home shopping commissions, 9) Converter and remote control rental fees, 10) Lockout Device fees and 11) guides. The term Gross Revenue shall not include bad debts or any taxes on Services furnished by Grantee imposed upon Subscribers by any municipality, state, or other governmental unit and collected by Grantee for such governmental unit. City and Grantee acknowledge and agree that Grantee will maintain its books and records in accordance with GAAP.
(7) "Subscriber" means any person receiving Cable Service whether pursuant to a monthly or other charge or fee as a public service.
15.24.020 GRANTING.
(a) The City Council may at any time in accordance with applicable law grant one (1) or more nonexclusive revocable Franchises to construct, operate, maintain and reconstruct a Cable System within all or any part of the City as specified by the Franchise Agreement, which may include those provisions of the Grantee's "Franchise Proposal" which are finally negotiated and accepted by the City and Grantee.
A public hearing shall be held prior to grant of a Franchise. Notice shall be given by publication at least ten (10) days prior to the public hearing. Nothing in this chapter shall be deemed to waive the requirements of other City codes and ordinances regarding permits, fees to be paid, manner of construction or general governance of Franchises.
(b) This chapter shall apply to all Franchises and Franchise renewals granted or renewed by the City. Amendments to the various provisions of this chapter shall further apply, to the extent permitted by applicable federal or State law, to all Franchises granted or renewed prior to the effective date of this and subsequent amendments.
(c) No Cable System shall be allowed to occupy or use the streets, public rights-of-way or public utility easements within the limits of the City or be allowed to operate without a Franchise in accordance with this chapter.
15.24.030 UNDERGROUND FACILITIES.
The Grantee of a Franchise hereunder shall at all times comply with all generally applicable code requirements regarding the undergrounding of transmission and distribution facilities.
15.24.040 DURATION.
The duration of any Franchise granted hereunder and all rights, privileges, obligations and restrictions pertaining thereto shall be as provided in the Franchise Agreement.
15.24.050 PAYMENTS.
The Grantee of a Franchise hereunder shall pay the City quarterly a sum equal to five percent (5%), or such greater sum permitted by federal law and the terms of the Franchise, to be calculated on Grantee's Gross Revenues, as that term is defined in the Franchise Agreement.
15.24.060 ANNUAL AUDIT.
Grantee shall file with the City, at the time of payment of the franchise fee, a report of all Gross Revenues in the form and substance as outlined in the Franchise. The payment shall be made within thirty (30) days of the end of each quarter.
Pursuant to the terms of the Franchise, the City shall have the right to inspect the Grantee's records showing the Gross Revenues from which its franchise fee payments are computed and the right of audit and recomputation of any and all amounts paid under any Franchise issued pursuant hereto.
15.24.070 CODE PROVISIONS APPLICABLE.
All provisions of this code and all rules, regulations and specifications heretofore or hereafter enacted or established shall apply to the holder of any Franchise issued hereunder unless otherwise exempted.
15.24.080 PERMITS REQUIRED.
The Grantee of a Franchise hereunder is obligated to apply for and receive all permits, licenses and authorization necessary to the full operation of the business whether from governmental agencies, private corporations or utilities.
15.24.090 CHANGES REQUIRED BY PUBLIC IMPROVEMENTS.
The Grantee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other public place or remove from the street or other public place, any property of the Grantee when required by the City Manager by reason of traffic conditions, public safety, street vacation, freeway and/or street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structure or improvements by public agencies; provided, however, that the Grantee shall in all such cases have the privilege and be subject to the obligations to abandon any property of the Grantee in place, as herein provided.
15.24.100 CITY NONLIABILITY—INSURANCE.
The Grantee of any Franchise shall hold the City, its elective and appointive boards, commissions, officers, agents and employees harmless from any liability for damage or claims for damages for personal injury, including death, as well as from claims for property damage which may arise from the Grantee's agents' or employees' operations under the Franchise. The Grantee shall defend the City and its elective and appointive boards, commissions, officers, agents and employees from any suits or actions at law or in equity for damages caused, or alleged to have been caused by reason of any of the aforesaid operations.
To assure compliance with the above, the Grantee shall take out and maintain during the life of the Franchise such public liability and property damage insurance as shall insure the City, its elective and appointive boards, commissions, officers, agents and employees against claims for damages for personal injury, including death, as well as from claims for property damage which may arise from the Grantee's operations under the Franchise whether such operations be by the Grantee or by anyone directly or indirectly employed by the Grantee.
The amounts and basis of the insurance shall be established in the Franchise Agreement.
All insurance policies shall be issued by an insurance carrier satisfactory to the City and shall be delivered to the City. In lieu of actual delivery of such policies a certificate issued by the insurance carrier showing such policies to be in force will be accepted.
15.24.110 INSPECTION OF PROPERTY AND RECORDS.
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 situate within or without the City, and to examine and transcribe any and all maps and other records kept or maintained by the Grantee or under its control which deal with the operations, affairs, transactions or property of the Grantee with respect to its Franchise. If any such maps or records are not kept in the City, or, upon reasonable request, made available in the City, and if the City Council shall determine that an examination thereof is necessary or appropriate, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by the Grantee.
The Grantee shall at all times make and keep in the City full and complete plans and records showing the location of all equipment installed or in use in streets and other public places in the City.
15.24.120 RATE SCHEDULE.
The Grantee of any Franchise hereunder shall file its schedule of rates and charges with the City Clerk. Notice of changes in rates and charges shall be filed with the City Clerk and all Subscribers. The intent of this section is to provide notice to City so as to keep City informed; nothing in this section is intended to authorize rate regulation by City.
15.24.130 VIOLATIONS.
(a) It is unlawful for any person to construct, install or maintain within any public street in the City, or within any public property of the City, or within any privately owned area within the City which has not yet become a 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 Cable System, unless a Franchise authorizing such use of such street or property or area has first been obtained, and unless such Franchise is in full force and effect.
(b) It is unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of the Cable System within this City for the purpose of enabling himself or others to receive any television signal, radio signal, picture, program or sound, without payment to the Grantee of said System.
(c) It is unlawful for any person, without the consent of the owner, to willfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound.
Violations of this chapter are misdemeanors or infractions as charged pursuant to Chapter 1.04.
15.24.140 FRANCHISE RENEWAL.
Franchise renewal shall be in accordance with applicable law.
15.24.150 POLICE POWERS.
In accepting a Franchise, the Grantee acknowledges that its rights hereunder are subject to the police power of the City to adopt and enforce general ordinances necessary to the health, safety and welfare of the public, and it agrees to comply with all general laws and ordinances enacted by the City pursuant to such power.
15.24.160 PREEMPTION.
If, during the effective period of any Franchise, any area of regulatory authority is preempted from local regulation by Federal or State law, and such preemption ends in whole or in part during the effective period of the same Franchise, City reserves the right to resume local regulation to the extent permitted by law and which it deems appropriate.
15.24.170 REIMBURSEMENT OF FRANCHISE PROCESSING COSTS.
For an initial Franchise grant Grantee shall reimburse the City within sixty (60) days of receipt of an itemization of costs from the City for the City's reasonable out of pocket processing costs, including, but not limited to, consultant and special legal costs.
Chapter 15.25 STATE VIDEO FRANCHISES
15.25.010 PURPOSES AND IMPLEMENTATION.
The purpose of this chapter is to set forth regulations for the provision of video service by state franchise holders, in accordance with the Digital Infrastructure and Video Competition Act, California Public Utilities Code sections 5800-5970 ("DIVCA"). This chapter applies to video service providers operating within the City pursuant to a valid state franchise.
15.25.020 DEFINITIONS.
For the purposes of this chapter, the words set out in this section have the following meanings:
(a) "City" means the City of San Mateo.
(b) "City Manager" means the City Manager of the City of San Mateo, or his or her designee.
(c) "Franchise fee" has the meaning set forth in Public Utilities Code section 5830 or its successor.
(d) "Gross revenues" has the meaning set forth in Public Utilities Code section 5860 or its successor.
(e) "Holder" has the meaning set forth in subdivision (j) of Public Utilities Code section 5830 or its successor.
(f) "Material breach" has the meaning set forth in subdivision (j) of Public Utilities Code section 5900 or its successor.
(g) "Network" has the meaning set forth in subdivision (l) of Public Utilities Code section 5830 or its successor.
(h) "State franchise" has the meaning set forth in subdivision (p) of Public Utilities Code section 5830.
(i) "Video service" has the meaning set forth in subdivision (s) of Public Utilities Code section 5830 or its successor.
15.25.030 FRANCHISE FEE FOR STATE FRANCHISE HOLDERS.
(a) The franchise fee established within the City for cable franchises is five percent of gross revenues. Every state franchise holder operating within the City shall pay a franchise fee to the City in the amount of five percent of that state franchise holder's gross revenues.
(b) Each state franchise holder shall remit the franchise fee to the City quarterly, within 45 days after the end of the quarter for that calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the franchise fee. If the state franchise holder does not pay the franchise fee when due, the state franchise holder shall pay a late payment charge at a rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent. If the state franchise holder has overpaid the franchise fee, it may deduct the overpayment from its next quarterly payment.
15.25.040 PEG CHANNELS.
(a) State franchise holders shall provide three PEG channels.
(b) All state franchise holders shall comply with the provisions of DIVCA related to PEG channels. Without limiting the foregoing, the PEG channels shall all be carried on the basic service tier. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the basic service tier and the channel numbers for the PEG channels shall be the same channel numbers used by the incumbent cable operator unless prohibited by federal law and shall provide picture and sound quality and channel accessibility and location equal to, or substantially equal to, that provided by the incumbent cable providers. After the initial designation of PEG channel numbers, the channel numbers shall not be changed without the agreement of the local entity unless the change is required by federal law.
(c) A state franchise holder shall have three months from the date City requests the PEG channels to designate the capacity. However, the three-month period shall be tolled by any period during which the designation or provision of PEG channel capacity is technically infeasible, including any failure or delay of the incumbent cable operator to take adequate interconnection available, as required by DIVCA. Any state franchise holder who believes that the designation or provision of PEG channel capacity is technically infeasible, shall provide to City, in writing, its reasons therefore and its plan for correcting or solving the infeasibility. City may hold a hearing on the claim of infeasibility and, thereafter, take such action as City deems proper to require the designation and provision of the PEG channels on the state franchise holder's system.
15.25.050 PEG CHANNEL FACILITIES FEE AND PAYMENTS.
In accordance with Public Utilities Code section 5870(n), upon termination of all incumbent cable provider franchises, state franchise holders must pay one percent of gross revenues to the City to support PEG channel facilities. State franchise holders shall remit PEG fees in the same manner as franchise fees as set forth in section 15.25.020 above. The PEG fee may be shown as a separate line item on the regular bill of each subscriber.
15.25.060 CUSTOMER SERVICE AND PROTECTION.
(a) A state franchise holder shall comply with Sections 53055, 53055.1, 53055.2 and 53088.2 of the California Government Code; the FCC customer service and notice standards set forth in Sections 76.309, 76.1602, 76.1603 and 76.1619 of Title 47 of the Code of Federal Regulations; Section 637.5 of the California Penal Code; the privacy standards of Section 551 of Title 47 of the United States Code; and all other applicable state and federal customer service and consumer protection standards pertaining to the provision of video service, including any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this paragraph shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.
(b) City shall enforce, in the manner set forth in DIVCA, all customer service and protection standards contained in section 5900 of the Act, including without limitation those standards set forth in section 5900(c).
15.25.070 PENALTIES.
The following monetary penalties, as set forth in Public Utilities Code section 5900, are hereby adopted as the applicable schedule of penalties for any material breach of DIVCA, by a state franchisee, as follows:
(1) $500 per day for each material breach, not to exceed $1500 per occurrence of a material breach.
(2) If a material breach has occurred and notice has been provided and a fine or penalty has been assessed, for any subsequent breach of the same nature within twelve months, shall be subject to a penalty of up to $1,000 for each day of each material breach, not to exceed $3,000 per occurrence of the material breach.
(3) If a third or further material breach of the same nature occurs within those same twelve months, and notice has provided and a fine or penalty has been assessed; the penalties shall be increased to a maximum of $2,500 per day for each material breach, not to exceed $7,500 per occurrence of the material breach."
Chapter 15.26 ALARM SYSTEMS
15.26.010 PURPOSE.
The purpose of this chapter is to provide for the regulation of nuisance and false alarms so as to alleviate the expenses incurred by the City's taxpayers in responding to and correcting alarms that are not caused by an emergency and for provision of basic definitions and conditions of alarm system installation and maintenance.
15.26.020 DEFINITIONS.
As used in this chapter, the following definitions shall apply:
(a) "Alarm system contractor" means a contractor who contracts with an owner, tenant, or lessee of premises to provide, maintain, repair, and/or disconnect alarm transmitting or receiving equipment.
(b) "Audible alarm system" means a system that produces an audible or visible signal at the point of origin.
(c) "Emergency" means an occasion that reasonably calls for a response by the City Police or Fire Departments. A response due to failure of the alarm system, personnel error in transmission or reporting of an alarm, or repair or maintenance of an alarm system is not an emergency.
(d) "False alarm" means an alarm signal necessitating response by the City Police or Fire Departments when an emergency does not exist. The Chief of Police or the Fire Chief, as applicable, or their designated representative shall determine whether an emergency did exist.
(e) "Nuisance alarm" means an alarm that has been emitting a sound continuously for at least two (2) hours or intermittently for at least three (3) hours, and has been reported to the Police Department, Fire Department, or City Communications Center as an annoyance in the vicinity of the alarm, and the owner, the occupant, the tenant, or the lessee of the premises or vehicle where the alarm is originating is not available or able to silence the alarm.
(f) "Remote alarm system" means a system that transmits a silent signal from a location to a remote processing center or other location for retransmission to the City.
(g) "Subscriber" means any person who has retained an alarm system contractor to provide alarm system services of some kind.
15.26.025 MAINTENANCE OF ALARM SYSTEM.
Alarm systems shall be maintained in proper working order to prevent false alarms through human error or equipment malfunction.
15.26.030 AUDIBLE ALARM SIGNALS.
No person shall use or install any local or audible alarm system that upon activation emits a sound similar to that emitted by sirens in use on any emergency vehicle.
(a) No person shall use or install any local or audible alarm system that upon activation emits a sound similar to that emitted by sirens in use on any emergency vehicle except that such may be used inside a building when the sound cannot be heard outside the building.
(b) It is unlawful to operate an audible alarm system that does not shut off within a maximum time of 15 minutes from the time of activation. Shut off within this time may be accomplished by either an automatic shut off or by manual operation. If the alarm has an automatic shut off with a rearming phase, the rearming phase must be able to distinguish between an open and closed circuit, and shall not rearm if the circuit is broken.
(c) It is unlawful to operate an audible alarm system affixed to a motor vehicle that is not equipped with an automatic shut off that shuts off the alarm within a maximum of 15 minutes from the time of activation.
15.26.040 FALSE ALARMS.
(a) Police Department. If any premise protected by an audible alarm system or remote alarm system which causes a response of the Police Department has more than one (1) false alarm during any twelve (12) month period, the City and/or Police Department may choose to:
(1) Not respond to an activated alarm from the premises; or
(2) Bill the owner, tenant, or lessee of the premises involved in such subsequent false alarm; or
(3) Both.
A uniform false alarm fee for police Department response shall be established by resolution of the City Council. Any false alarm that occurs during the first two weeks after original installation of the alarm system involved shall not be counted against the false alarm count if the owner of the premises or the person responsible for the installation of the system has notified the Police Department of the installation within ten (10) days of completion of the installation. Upon determination that an alarm is false, the Chief of Police or designated representative will notify the owner of the premises in writing; this requirement is met if a written notice is posted at the property involved. If the Chief of Police determines that the Police Department will no longer respond to activated alarms at the premises concerned, the Chief will notify the owner of the premises in writing.
15.26.050 APPEAL.
Any person who contends that the Fire Chief or Chief of Police or their designated representative has erroneously determined that an alarm was a false alarm may, within ten (10) days of receipt of notification of the determination, file a written appeal with the department making that determination. The Chief involved will hold a hearing on the appeal within thirty (30) days of receipt of the appeal, and render a written decision on the appeal within ten (10) days of the hearing. The decision of the Chief on the appeal shall be final and conclusive.
15.26.060 ALARM VERIFICATION.
No person shall use any alarm systems that automatically reports an emergency directly to Police Departments. Alarm systems shall report to alarm central stations or on site security for verification. Each call shall be deemed a separate violation.
15.26.070 ENTRY—PRIVATE PROPERTY OR VEHICLES.
Any officer or police service aide of the Police Department is authorized to enter on exterior private property areas, and into vehicles on private property or public streets, for the purpose of silencing a nuisance alarm. Forcible entry may be made into vehicles, exterior alarm equipment boxes, and attic and crawlspace vents, in order to silence such an alarm.
15.26.080 SERVICE AGREEMENT—PRIVATE CONTRACTOR.
(a) The City is authorized to enter into a service agreement with an alarm system contractor to provide twenty-four (24) hour service to silence nuisance alarms. When such a service agreement is in effect, any employee of that alarm system contractor may utilize the authority granted in section 15.26.070 above if accompanied by a police officer or police service aide.
(b) The service agreement may provide that the alarm system contractor shall bill the owner of the nuisance alarm in not more than a reasonable amount for services in silencing the nuisance alarm. The owner of the nuisance alarm is liable to the City's alarm system contractor in a reasonable sum for his or her services in silencing the nuisance alarm. Should the owner fail to pay the sum due the contractor for his or her services, the City may pay the contractor for his or her services, and the City Manager may cause the amount of the payment to become a lien on the owner's property through the procedures provided by Chapter 10.08 of this Code.
15.26.090 NONLIABILITY.
Neither the City, its alarm system contractor, nor any of the officers, agents, or employees of the City or the contractor shall be liable in damages to the owner of a nuisance alarm or the lessee, tenant, or owner of the premises or vehicle at which the nuisance alarm was located for silencing the nuisance alarm or for entry on or into his or her property for the purpose of silencing the nuisance alarm, or for any damage resulting from any reasonable efforts to silence the nuisance alarm.
