CHAPTER XXVI
TAXATION/UTILITY TAX


Subject Article

Uniform Local Sales and Use Tax 01
Documentary Stamp Tax on the Sale of
Real Property 02
Utility User Tax 03
Special Public Safety Tax 04

ARTICLE 01

UNIFORM LOCAL SALES AND USE TAX

SECTION:

26.01.01: Purpose

26.01.02: Rate

26.01.03: Operative Date

26.01.04: Contract With State

26.01.05: Sales Tax

26.01.06: Place of Sale

26.01.07: Use Tax

26.01.08: Adoption of Provisions of State Law

26.01.09: Limitation on Adoption of State Law

26.01.10: Permit Not Required

26.01.11: Exclusions and Exemptions

26.01.12: Additional Exclusions and Exemptions

26.01.13: Amendments

26.01.14: Enjoining Collection Forbidden

26.01.15: Penalties

26.01.16: Effective Date !2R!

26.01.01: PURPOSE:

The City Council hereby declares that this Article is adopted to achieve the following, among others, purposes and directs that the provisions hereof be interpreted in order to accomplish those purposes:

A. To adopt a sales and use tax which complies with the requirements and limitations contained in part 1.5 of division 2 of the Revenue and Taxation Code.

B. To adopt a sales and use tax which incorporates provisions identical to those of the sales and use tax law of the State insofar as those provisions are not inconsistent with the requirements and limitations contained in part 1.5 of division 2 of the Revenue and Taxation Code.

C. To adopt a sales and use tax which imposes a tax and provides a measure therefor that can be administered and collected by the State Board of Equalization in a manner that adapts itself as fully as practicable to, and requires the least possible deviation from the existing statutory and administrative procedures followed by the State Board of Equalization in administering and collecting the California State sales and use taxes.

D. To adopt a sales and use tax which can be administered in a manner that will, to the degree possible consistent with the provisions of part 1.5 of division 2 of the Revenue and Taxation Code, minimize the burden of record keeping upon persons subject to taxation under the provisions of this Article. (1990 Revs.)

26.01.02: RATE:

The rate of sales and use tax imposed by this Article shall be one percent (1%). (1990 Revs.)

26.01.03: OPERATIVE DATE:

This Article shall be operative on January 1, 1984. (1990 Revs.)

26.01.04: CONTRACT WITH STATE:

Prior to the operative date, this City shall contract with the State Board of Equalization to perform all functions incident to the administration and operation of this sales and use tax; provided, that if this City shall not have contracted with the State Board of Equalization prior to the operative date, it shall nevertheless so contract, and in such a case, the operative date shall be the first day of the first calendar quarter following the execution of such a contract rather than the first day of the first calendar quarter following the initial adoption of this Article. (1990 Revs.)

26.01.05: SALES TAX:

For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the City at the rate stated in Section 26.01.02 of this Article of the gross receipts of the retailer from the sale of all tangible personal property sold at retail in this City on and after the operative date. (1990 Revs.)

26.01.06: PLACE OF SALE:

For the purpose of this Article, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his/her agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the State sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the State or has more than one place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the State Board of Equalization. (1990 Revs.)

26.01.07: USE TAX:

An excise tax is hereby imposed on the storage, use or other consumption in this City of tangible personal property purchased from any retailer on and after the operative date for storage, use or other consumption in this City at the rate stated in Section 26.01.02 of this Article of the sales price of the tangible personal property. The sales price shall include delivery charges when such charges are subject to State sales or use tax regardless of the place to which delivery is made. (1990 Revs.)

26.01.08: ADOPTION OF PROVISIONS OF STATE LAW:

Except as otherwise provided in this Article and except insofar as they are inconsistent with the provisions of part 1.5 of division 2 of the Revenue and Taxation Code, all of the provisions of part 1 of division 2 of the Revenue and Taxation Code are hereby adopted and made a part of this Article as though fully set forth herein. (1990 Revs.)

26.01.09: LIMITATION ON ADOPTION OF STATE LAW:

In adopting the provisions of part 1 of division 2 of the Revenue and Taxation Code, wherever the State of California is named or referred to as the taxing agency, the name of this City shall be substituted therefor. The substitution, however, shall not be made when the word "State" is used as part of the title of the State Controller, the State Treasurer, the State Board of Control, the State Board of Equalization, the State Treasury or the Constitution of the State of California. The substitution shall not be made when the result of that substitution would require action to be taken by or against the City or any agency thereof rather than by or against the State Board of Equalization in performing the functions incident to the administration or operation of this Article. The substitution shall not be made in those sections, including but not necessarily limited to sections referring to the exterior boundaries of the State of California, where the result of the substitution would be to provide an exception from this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such sales, storage, use or other consumption remain subject to the tax by the State under the provisions of part 1 of division 2 of the Revenue and Taxation Code or to impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not be subject to tax by the State under the said provisions of that Code. The substitutions shall not be made in sections 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828 of the Revenue and Taxation Code. The substitution shall not be made for the word "State" in the phrase "retailer engaged in business in this State" in section 6203 or in the definition of that phrase in section 6203. (1990 Revs.)

26.01.10: PERMIT NOT REQUIRED:

If a seller's permit has been issued to a retailer under section 6067 of the Revenue and Taxation Code, an additional seller's permit shall not be required by this Article. (1990 Revs.)

26.01.11: EXCLUSIONS AND EXEMPTIONS:

A. The amount subject to tax shall not include any sales or use tax imposed by the State upon a retailer or consumer.

B. The storage, use or other consumption of tangible personal property, the gross receipts from the sale of which have been subject to tax under a sales and use tax ordinance enacted in accordance with part 1.5 of division 2 of the Revenue and Taxation Code by any city and county or city in this State shall be exempt from the tax due under this Article.

C. There are exempted from the computation of the amount of the sales tax the gross receipts from the sale of tangible personal property to operators of aircraft to be used or consumed principally outside the City in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this State, the United States or any foreign government.

D. In addition to the exemptions provided in sections 6366 and 6366.1 of the Revenue and Taxation Code, the storage, use or other consumption of tangible personal property purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this State, the United States or any foreign government is exempted from this use tax.

E. This Section shall be operative January 1, 1984. (1990 Revs.)

26.01.12: ADDITIONAL EXCLUSIONS AND EXEMPTIONS:

A. There are exempted from the computation of the amount of sales tax the gross receipts from the sale of tangible personal property to operators of waterborne vessels to be used or consumed principally outside the City in which the sale is made and directly and exclusively in the carriage of persons or property in such vessels for commercial purposes.

B. The storage, use or other consumption of tangible personal property purchased by operators of waterborne vessels and used or consumed by such operators directly and exclusively in the carriage of persons or property of such vessels for commercial purposes is exempted from the use tax.

C. This Section shall be operative on the operative date of any act of the Legislature of the State of California which amends section 7202 of the Revenue and Taxation Code or which repeals and reenacts section 7202 of the Revenue and Taxation Code to provide an exemption from City sales and use taxes for operators of waterborne vessels in the same, or substantially the same, language as that existing in subdivisions (i)(7) and (i)(8) of section 7202 as those subdivisions read on October 1, 1983. (1990 Revs; 1994 Code)

26.01.13: AMENDMENTS:

ll subsequent amendments of the Revenue and Taxation Code which relate to the sales and use tax and which are not inconsistent with part 1.5 of division 2 of the Revenue and Taxation Code shall automatically become a part of this Article. (1990 Revs.)

26.01.14: ENJOINING COLLECTION FORBIDDEN:

No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the State or this City or against any officer of the State or this City to prevent or enjoin the collection under this Article or part 1.5 of division 2 of the Revenue and Taxation Code of any tax or any amount of tax required to be collected. (1990 Revs.)

26.01.15: PENALTIES:

Any person violating any provisions of this Article shall be deemed guilty of a misdemeanor or infraction, as determined by the City Prosecutor. (1990 Revs.; 1994 Code)

26.01.16: EFFECTIVE DATE:

This Article relates to taxes for the usual and current expense of the City and shall take effect on February 8, 1984. (1990 Revs.)

ARTICLE 02 - Back to top

DOCUMENTARY STAMP TAX ON THE SALE OF REAL PROPERTY

SECTION:

26.02.01: Authority

26.02.02: Applicability and Rate of Tax

26.02.03: Payor of Tax

26.02.04: Exclusion; Debt

26.02.05: Exclusion; Government Agency

26.02.06: Exclusion; Reorganization or Adjustment

26.02.07: Exclusions; Security and Exchange Commission Order

26.02.08: Exclusions; Partnerships

26.02.09: County Recorder to Administer

26.02.10: Refunds

26.02.11: Operative Date

26.02.01: AUTHORITY:

This Article is adopted pursuant to the authority contained in part 6.7 (commencing with section 11901) of division 2 of the Revenue and Taxation Code of the State. (1990 Revs.)

26.02.02: APPLICABILITY AND RATE OF TAX:

There is hereby imposed on each deed, instrument or writing by which any lands, tenements or other realty sold within the City shall be granted, assigned, transferred or otherwise conveyed to or vested in the purchaser or purchasers or any other person or persons by his/her or their direction, when the consideration or value of the interest or property conveyed (exclusive of any lien or encumbrances remaining thereon at the time of sale) exceeds one hundred dollars ($100.00), a tax at the rate of twenty seven and one-half cents ($0.275) for each five hundred dollars ($500.00) or fractional part thereof. (1990 Revs.)

26.02.03: PAYOR OF TAX:

Any tax imposed pursuant to Section 26.02.02 hereof shall be paid by any person who makes, signs or issues any document or instrument subject to the tax or for whose use or benefit the same is made, signed or issued. (1990 Revs.)

26.02.04: EXCLUSION; DEBT:

Any tax imposed pursuant to this Article shall not apply to any instrument in writing given to secure a debt. (1990 Revs.)

26.02.05: EXCLUSION; GOVERNMENT AGENCY:

The United States or any agency or instrument thereof, any state or territory or political subdivision thereof or the District of Columbia shall not be liable for any tax imposed pursuant to this Article with respect to any deed, instrument or writing to which it is a party, but the tax may be collected by assessment from any other party liable therefor. (1990 Revs.)

26.02.06: EXCLUSION; REORGANIZATION OR ADJUSTMENT:

Any tax imposed pursuant to this Article shall not apply to the making, delivering or filing of conveyances to make effective any plan or reorganization or adjustment that is:

A. Confirmed under the Federal Bankruptcy Act, as amended;

B. Approved in an equity receivership proceeding in a court involving a railroad corporation, as defined in subdivision (m) of section 205 of title 11 of the United States Code, as amended;

C. Approved in an equity receivership proceeding in a court involving a corporation, as defined in subdivision (3) of section 506 of title 11 of the United States Code, as amended; or

D. Whereby a mere change in identity, form or place or organization is effected.

Subsections A and D, inclusive, of this Section shall only apply if the making, delivery or filing of instruments of transfer or conveyances occurs within five (5) years from the date of such confirmation, approval or change. (1990 Revs; 1994 Code.)

26.02.07: EXCLUSIONS; SECURITY AND EXCHANGE COMMISSION ORDER:

Any tax imposed pursuant to this Article shall not apply to the making or delivery of conveyances to make effective any order of the Securities and Exchange Commission, as defined in subdivision (a) of section 1083 of the Internal Revenue Code of 1954, but only if:

A. The order of the Securities and Exchange Commission in obedience to which such conveyance is made recites that such conveyance is necessary or appropriate to effectuate the provisions of section 79k of title 15 of the United States Code, relating to the Public Utility Holding Company Act of 1935.

B. Such order specifies the property which is ordered to be conveyed.

C. Such conveyance is made in obedience to such order. (1990 Revs.)

26.02.08: EXCLUSIONS; PARTNERSHIPS:

A. In the case of any realty held by a partnership, no levy shall be imposed pursuant to this Article by reason of any transfer of an interest in a partnership or otherwise if:

1. Such partnership (or another partnership) is considered a continuing partnership within the meaning of section 708 of the Internal Revenue Code of 1954; and

2. Such a continuing partnership continues to hold the realty concerned.

B. If there is a termination of any partnership within the meaning of section 708 of the Internal Revenue Code of 1954, for purposes of this Article, such partnership shall be treated as having executed an instrument whereby there was conveyed, for fair market value (exclusive of the value of any lien or encumbrance remaining thereon), all realty held by such partnership at the time of such termination.

C. Not more than one tax shall be imposed pursuant to this Article by reason of a termination described in subsection B above and any transfer pursuant thereto, with respect to the realty held by such partnership at the time of such termination. (1990 Revs.)

26.02.09: COUNTY RECORDER TO ADMINISTER:

The County Recorder shall administer this Article in conformity with the provisions of part 6.7 of division 2 of the Revenue and Taxation Code and the provisions of any County ordinance adopted pursuant thereto. (1990 Revs.)

26.02.10: REFUNDS:

Claims for refund of taxes imposed pursuant to this Article shall be governed by the provisions of chapter 5 (commencing with section 5096) of part 9 of division 1 of the Revenue and Taxation Code of the State. (1990 Revs.)

26.02.11: OPERATIVE DATE:

This Article shall become operative on December 13, 1967. (1990 Revs.)

ARTICLE 03 - Back to top

UTILITY USER TAX

SECTION:

26.03.01: Title And Purpose

26.03.02: Definitions

26.03.03: Exemptions

26.03.04: Telecommunications User Tax

26.03.05: Electricity User Tax

26.03.06: Gas User Tax

26.03.07: Service Users Receiving Direct Purchase Of Gas Or Electricity

26.03.08: Water User Tax

26.03.09: Video User Tax

26.03.10: Remittance Of Tax

26.03.11: Actions To Collect

26.03.12: Duty To Collect; Procedures

26.03.13: Additional Power And Duties Of Tax Administrator

26.03.14: Assessment; Service User Administrative Remedy

26.03.15: Records

26.03.16: Refunds

26.03.17: Termination Or Suspension Of Utility User Tax !2R!

26.03.01: TITLE AND PURPOSE:

This Article shall be known as the UTILITY USER TAX ORDINANCE for the City. This Article is enacted solely to raise revenue for the general governmental purposes of the City. All of the proceeds from the tax imposed by this Article shall be placed in the City's General Fund and used for the usual and current expenses of the City. (Ord. 1099, 11-5-1996)

26.03.02: DEFINITIONS:

The following words and phrases, whenever used in this Article, shall be construed as defined in this Section:

CITY: The City of San Marino.

FRANCHISED VIDEO PROVIDER: Any video provider that provides video services within the City pursuant to a video services franchise granted by the City.

GAS: Natural or manufactured gas or any alternate hydrocarbon fuel which may be substituted therefor.

INTERNATIONAL TELECOMMUNICATIONS: All telecommunications that either: a) originate in the City and terminate outside of the United States, or b) originate outside of the United States and terminate in the City, where, in either instance, the service or billing of the service user is in the City.

INTERSTATE TELECOMMUNICATIONS: All telecommunications that either: a) originate in the City and terminate in another state, or b) originate in another state and terminate in the City, where, in either instance, the service or billing of the service user is in the City.

INTRASTATE TELECOMMUNICATIONS: All telecommunications regardless of routing that either: a) originate in the City and terminate in the State, or b) originate in the State and terminate in the City, where, in either instance, the service or billing address of the service user is in the City.

MONTH: A calendar month.

NONUTILITY SUPPLIER:

A. A service supplier, other than an electrical corporation franchised to serve within the City, which generates electrical energy in capacities of 50 kilowatts, or more, for its own use or for sale to others, and shall include, but is not limited to, any publicly owned electric utility, investor-owned utility, municipal utility district, Federal power marketing agency, electric rural cooperative, or other supplier or seller of electricity; or

B. A gas supplier other than a gas corporation franchised to serve within the City, which sells or supplies gas to users within the City.

PERSON: Any domestic or foreign corporation, firm, association, syndicate, joint stock company, partnership of any kind, joint venture, club, Massachusetts business or common law trust, society or individual(s).

SERVICE SUPPLIER: Any entity required to collect or self-impose and remit a tax as imposed by this Article.

SERVICE USER: A person required to pay a tax imposed by this Article.

TAX ADMINISTRATOR: The City Manager or his or her designee.

TELECOMMUNICATIONS SERVICES: Includes, without limitation, in addition to the meaning ordinarily and popularly ascribed to the term, the transmission of messages or information (including, but not limited to, voice, data, facsimile, video, text) through the use of the local, toll, and wide area telephone service; telegraph and teletypewriter services; cellular telephone services; or any other transmission of messages or information by electronic or similar means through "interconnected services with the public switched network", as those terms are commonly used in the Federal Communications Act and the regulations of the Federal Communications Commission, by wire, cable, fiber optics, light waves, laser, microwaves, radio waves, switching facilities, satellite or similar facilities, whether such service is provided by a telephone corporation, competitive access provider, private communication service provider, or any other person. "Telecommunication services" shall include "basic telecommunication services" and "directly related services", as those terms are defined and interpreted by the Federal Communications Commission in its regulations and decisions. "Telecommunication services" shall not include private communication services, land mobile services or maritime mobile services (as defined by Federal Regulations), which are not interconnected with the public switched network.

TELEPHONE CORPORATION, ELECTRICAL CORPORATION, GAS CORPORATION, WATER CORPORATION: Shall have the same meanings as defined in sections 234, 218, 222, and 241, respectively, of the California Public Utilities Code, except "electrical corporation", "gas corporation" and "water corporation" shall also be construed to include any municipality, public agency or person engaged in the selling or supplying of electrical power or gas or water to a service user.

VIDEO PROVIDER: Any person which provides one or more channels of video programming or communications (including the leasing of channel access to provide such video programming or communications) to an address in the City, including to a business, home, condominium, or apartment, where some fee is paid, whether directly or as included in dues or rental charges for that service, whether or not public rights of way are utilized in the delivery of the video programming or communications. A "video provider" includes, but is not limited to, multichannel video programming distributors as defined in 47 USC section 522(12), providers of cable television, master antenna television, satellite master antenna television, direct broadcast satellite, multichannel multi-point distribution services, and other providers of video programming or communications (including two-way communications), whatever their technology.

VIDEO SERVICES: Any and all services related to the providing of video programming (including origination programming), communications (including two-way communications), regardless of the content of the video programming of communications, and shall include the leasing of channel access. "Video services" shall not include services for which a tax is paid under Section 26.03.04 of this Article.

VIDEO SERVICES FRANCHISE: A franchise agreement granted by the City to a video provider for providing video services within the City, and which requires the video provider to pay a franchise fee to the City, which fee is billed to the customers of the franchised video provider as part of the bill for services. (Ord. 1099, 11-5-1996) !DEFEND!

26.03.03: EXEMPTIONS:

A. Nothing in this Article shall be construed as imposing a tax upon any person when imposition of such tax upon that person would be in violation of the Constitution or law of the United States or that of the State.

B. The tax otherwise imposed by this Article is not applicable to accredited schools and churches.

C. The City Council may, by order or resolution, establish one or more classes of persons or one or more classes of utility service otherwise subject to payment of a tax imposed by this Article and provide that such classes of persons or service shall be exempt, in whole or in part, from such tax.

D. The Tax Administrator shall prepare a list of the persons exempt from the provisions of this Article by virtue of this Section and furnish a copy thereof to each service supplier. (Ord. 1099, 11-5-1996)

26.03.04: TELECOMMUNICATIONS USER TAX:

A. There is hereby imposed a tax upon every person, other than a telephone corporation, using interstate, international, and/or intrastate telecommunication services in the City. The tax imposed by this Section shall not exceed six percent (6%) of the charges made for such services and shall be paid by the person paying for such services. The tax shall not be based on network usage-related charges for cellular telephone services and other similar mobile services, for which the service provider cannot, as a practical matter, determine the origination or termination of the telecommunication. The Tax Administrator may adopt administrative rules for assuring a reasonable and consistent allocation of the monthly cellular billing between network usage-related charges and non-usage-related charges.

B. As used in this Section, the term "charges" shall also include the value of any other services, credits, property of every kind or nature, or other consideration provided by the service user in exchange for the telecommunication services. The term "charges" shall not include charges for services paid for by inserting coins in coin-operated telephones; except, that where such coin-operated service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly or other periodic charge shall be included in the base for computing the amount of tax due, nor shall the term "charges" include charges for any type of service or equipment furnished by a service supplied subject to public utility regulations during any period in which the same or similar services or equipment are also available for sale or lease from persons other than a service supplier subject to public utility regulation.

C. Notwithstanding the provisions of subsections A and B of this Section, the tax imposed under this Section shall not be imposed upon any person for using telecommunication services to the extent that the amounts paid for such services are exempt from or not subject to the tax imposed under section 4251 of the Internal Revenue Code, and the regulations thereunder, except for the following charges, which shall be included in the calculation of the tax under this Section:

1. Charges to a service user in the City by a telecommunication service provider, including, but not limited to, an alternative or nontraditional telephone service provider, a private communication service provider, or a competitive access provider, for providing telecommunication services used in the City, and/or access to telephone toll service of an interexchange carrier.

D. The tax imposed by this Section shall be collected from the service user by the person providing the telephone communication services or the person receiving payment for such services. The amount of tax collected in one month shall be remitted to the Tax Administrator on or before the last day of the following month, or, at the option of the person required to collect and remit the tax, an estimated amount of tax collected, measured by the tax bill in the previous month, shall be remitted to the Tax Administrator on or before the last day of each month.

E. To prevent actual multi-jurisdictional taxation of telecommunication services subject to tax under this Section, any service user, upon proof to the Tax Administrator that the service user has previously paid the same tax in another state or city on such telecommunication service, shall be allowed a credit against the tax imposed to the extent of the amount of such tax legally imposed in such other state or city; provided, however, the amount of credit shall not exceed the tax owed to the City under this Section. (Ord. 1099, 11-5-1996)

26.03.05: ELECTRICITY USER TAX:

A. There is hereby imposed a tax upon every person in the City, other than a gas corporation or electrical corporation, using electrical energy in the City. The tax imposed by this Section shall not exceed the rate of six percent (6%) of the charges made for such energy by an electrical corporation providing service in the City and shall be billed to and paid by the person using the energy. The tax applicable to electrical energy provided by a nonutility supplier shall be determined by applying the tax rate to the equivalent charges the service user would have incurred if the energy used had been provided by the electrical corporation franchised by the City. Nonutility suppliers shall install and maintain an appropriate utility-type metering system which will enable compliance with this Section. "Charges", as used in this Section, shall include charges made for: 1) metered energy and 2) minimum charges for service, including customer charges, service charges, demand charges, standby charges and all other annual and monthly charges, fuel or other cost adjustments authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission.

B. As used in this Section, the term "using electrical energy" shall not be construed to mean the storage of such energy by a person in a battery owned or possessed by him for use in an automobile or other machinery device apart from the premises upon which the energy was received; provided, however, that the term shall include the receiving of such energy for the purpose of using it in the charging of batteries nor shall the term include electricity used and consumed by an electric utility supplier in the conduct of its business as an electric public utility nor shall the term include the mere receiving of such energy by an electric public utility or governmental agency at a point within the City for resale or the use of such energy in the production or distribution of water by a public utility or governmental agency.

C. The tax imposed in this Section shall be collected from the service user by any energy service supplier or nonutility supplier. The tax imposed by this Section on use supplied by self-generation or from a nonutility supplier not subject to the jurisdiction of this Article shall be collected and remitted to the Tax Administrator in the manner set forth in Section 26.03.07 of this Article. The amount of tax collected by a service supplier or a nonutility supplier in one month shall be remitted by United States mail to the Tax Administrator, postmarked on or before the last day of the following month, or at the option of the person required to collect and remit the tax, an estimated amount of tax measured by the tax billed in the previous month and payment patterns of the person's customers shall be remitted by U.S. mail to the Tax Administrator, postmarked on or before the last day of each month.

D. Notwithstanding the provisions of subsection A of this Section, if the amount paid by a service user is less than the full amount of the energy charge and tax which has accrued for the billing period, such amount and any subsequent payments by a service user shall be applied to the energy charge first until such charge has been fully satisfied. Any remaining balance shall be applied to taxes due. (Ord. 1099, 11-5-1996)

26.03.06: GAS USER TAX:

A. There is hereby imposed a tax upon every person in the City, other than a gas corporation or electrical corporation, using, in the City, gas which is transported through mains or pipes. The tax imposed by this Section shall not exceed the rate of six percent (6%) of the charges made for such gas and shall be billed to and paid by the person paying for such gas. The tax applicable to gas or gas transportation provided by nonutility suppliers shall be determined by applying the tax rate to the equivalent charges the service user would have incurred if the gas or gas transportation had been provided by the gas corporation franchised by the City. "Charges", as used in this Section, shall include: 1) the amount billed for gas which is delivered through mains or pipes; 2) gas transportation charges; and 3) demand charges, service charges, customer charges, minimum charges, annual and monthly charges and any other charge authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission.

B. The tax otherwise imposed by this Section is not applicable to: 1) charges made for gas which is to be resold and delivered through mains and pipes; 2) charges made for gas sold for use in the generation of electrical energy or for the production or distribution of water by a public utility or governmental agency; 3) charges made by a gas public utility for gas used and consumed in the conduct of the business of gas public utilities; 4) charges made for gas used in the propulsion of a motor vehicle, as that phrase is defined in the Vehicle Code of the State, utilizing natural gas; 5) charges related to late payments and returned checks; and 6) charges made for gas used by a nonutility supplier to generate electrical energy for its own use or for sale to others, provided the electricity so generated is subject to the tax in accordance with Section 26.03.05 of this Article.

C. Tax imposed in this Section shall be collected from the service user by the person selling or transporting the gas. A person selling only transportation services to a user for delivery of gas through mains or pipes shall collect the tax from the service user based on the transportation charges. The person selling or transporting the gas shall, on or before the twentieth of each calendar month, commencing on the twentieth day of the calendar month after the effective date of this part, make a return to the Tax Administrator stating the amount of taxes billed during the preceding calendar month. At the time such returns are filed, the person selling or transporting the gas shall remit tax payments to the Tax Administrator in accordance with schedules established or approved by the Tax Administrator.

D. The tax imposed in this Section on gas supplied by self-production or a nonutility supplier not subject to the jurisdiction of this Article shall be collected and remitted to the Tax Administrator in the manner set forth in Section 26.03.07 of this Article. (Ord. 1099, 11-5-1996)

26.03.07: SERVICE USERS RECEIVING DIRECT PURCHASE OF GAS OR ELECTRICITY:

A. Notwithstanding any other provision of this Article, a service user receiving gas or electricity directly from a nonutility supplier not under the jurisdiction of this Article or otherwise not having the full tax due on the use of gas or electricity in the City directly billed and collected by the service supplier shall report said fact to the Tax Administrator within thirty (30) days of said use and shall directly remit to the City the amount of tax due.

B. The Tax Administrator may require said service user to provide, subject to audit, filed tax returns or other satisfactory evidence documenting the quantity of gas or electricity used and the price thereof. (Ord. 1099, 11-5-1996)

26.03.08: WATER USER TAX:

A. There is hereby imposed a tax upon every person in the City using water which is delivered through mains or pipes. The tax imposed by this Section shall not exceed six percent (6%) of the charges made for such water and shall be paid by the person paying for such water.

B. There shall be excluded from the base on which the tax imposed in this Section is computed charges made for water which is to be resold and delivered through mains or pipes and charges made by a municipal water department, public utility or a city or municipal water district for water used and consumed by such department, utility or district.

C. The tax imposed in this Section shall be collected from the service user by the person supplying the water. The amount collected in one month shall be remitted to the Tax Administrator on or before the last day of the following month. (Ord. 1099, 11-5-1996)

26.03.09: VIDEO USER TAX:

A. There is hereby imposed a tax upon every person in the City using video services from a video provider. The tax imposed by this Section shall not exceed the rate of six percent (6%) of the charges made for such service and shall be paid by the person paying for such service; provided, however, that the tax imposed by this Section on any person using video services provided by a franchised video provider shall be at a rate equal to the existing video user tax rate minus the percentage rate set out in the applicable video services franchise which establishes a franchise fee. The term "charges" shall include charges for leased access channels and origination programming, which are transmitted to video users in the City, and shall also include the value of any other services, credits, property of every kind or nature, or other consideration provided by the service user in exchange for the video services.

B. The tax imposed in this Section shall be collected from the service user by the person furnishing the video services. The amount collected in one month shall be remitted to the Tax Administrator on or before the last day of the following month. (Ord. 1099, 11-5-1996)

26.03.10: REMITTANCE OF TAX:

Taxes collected from a service user which are not remitted to the Tax Administrator on or before the due dates provided in this Article are delinquent. Should the due date occur on a weekend or legal holiday, the return may be postmarked on the first regular working day following a Saturday/Sunday or legal holiday. (Ord. 1099, 11-5-1996)

26.03.11: ACTIONS TO COLLECT:

Any tax required to be paid by a service user under the provisions of this Article shall be deemed a debt owed by the service user to the City. Any such tax collected from a service user which has wilfully been withheld from the Tax Administrator shall be deemed a debt owed to the City by the person required to collect and remit. Any person owing money to the City under the provisions of this Article shall be liable to an action brought in the name of the City for the recovery of such amount. (Ord. 1099, 11-5-1996)

26.03.12: DUTY TO COLLECT; PROCEDURES:

The duty to collect and remit the taxes imposed by this Article shall be performed as follows:

A. Notwithstanding the provisions of Section 26.03.07 of this Article, the tax shall be collected, insofar as practicable, at the same time as and along with the charges made in accordance with the regular billing practices of the service supplier. Where the amount paid by a service user to a service supplier is less than the full amount of the service charge and tax which has accrued for the billing period, such amount and any subsequent payments by a service user shall be applied to the utility charge first until such charge has been fully satisfied. Any remaining balance shall be applied to taxes due. In those cases where a service user has notified the service supplier of his/her refusal to pay the tax imposed on said energy charges, Section 26.03.14 of this Article shall apply.

B. The duty to collect tax from a service user shall commence with the beginning of the first full regular billing period applicable to the service user where all charges normally included in such regular billing are subject to the provisions of this Article. Where a person receives more than one billing, one or more being for different periods than another, the duty to collect shall arise separately for each billing. (Ord. 1099, 11-5-1996)

26.03.13: ADDITIONAL POWER AND DUTIES OF TAX ADMINISTRATOR:

A. The Tax Administrator shall have the power and duty and is hereby directed to enforce each and all of the provisions of this Article.

B. The Tax Administrator shall have the power to adopt rules and regulations not inconsistent with provisions of this Article for the purpose of carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. A copy of such rules and regulations shall be on file in the Tax Administrator's office.

C. The Tax Administrator may make administrative agreements to vary the strict requirements of this Article so that collection of any tax imposed here may be made in conformance with the billing procedures of particular service supplier so long as said agreements result in collection of the tax in conformance with the general purpose and scope of this Article. A copy of each such agreement shall be on file in the Tax Administrator's office.

D. The Tax Administrator shall determine the eligibility of any person who asserts a right to exemption from the tax imposed by this Article. The Tax Administrator shall provide the service supplier with the name of any person who the Tax Administrator determines is exempt from the tax imposed hereby, together with the address and account number to which service is supplied to any such exempt person. The Tax Administrator shall notify the service supplier of termination of any person's right to exemption hereunder or the change of any address to which service is supplied to any exempt person.

E. The Tax Administrator shall provide notice to all service suppliers at least ninety (90) days prior to any annexation or other change in the City's boundaries. Said notice shall set forth the revised boundaries by street and address, along with a copy of the final annexation order from the Los Angeles County Local Agency Formation Commission. (Ord. 1099, 11-5-1996)

26.03.14: ASSESSMENT; SERVICE USER ADMINISTRATIVE REMEDY:

A. The Tax Administrator may make an assessment for taxes not remitted by a person required to remit.

B. Whenever the Tax Administrator determines that a service user has deliberately withheld the amount of the tax owed by him/her from the amounts remitted to a person required to collect the tax or that a service user has refused to pay the amount of tax to such person or whenever the Tax Administrator deems it in the best interest of the City, he/she may relieve such service supplier of the obligation to collect taxes due under this Article from certain named service users for specified billing periods.

C. The service supplier shall provide the City with amounts refused and/or unpaid along with the names and addresses of the service users neglecting to pay the tax imposed under provisions of this Article. Whenever the service user has failed to pay the amount of tax for a period of two (2) or more billing periods, the services supplier shall be relieved of the obligation to collect taxes due.

D. The Tax Administrator shall notify the service user that he/she assumed responsibility to collect the taxes due for the stated periods and demand payment of such taxes. The notice shall be served on the service user by handing it to him/her personally or by deposit of the notice in the United States mail, postage prepaid thereon, addressed to the service user at the address to which billing was made by the person required to collect the tax or, should the service user have changed his/her address, to his/her last known address. If a service user fails to remit the tax to the Tax Administrator within fifteen (15) days from the date of the service of the notice upon him/her, which shall be the date of mailing if service is not accomplished in person, a penalty of twenty five percent (25%) of the amount of the tax set forth in the notice shall be imposed, but not less than five dollars ($5.00). The penalty shall become part of the tax herein required to be paid. (Ord. 1099, 11-5-1996)

26.03.15: RECORDS:

It shall be the duty of every person required to collect and remit to the City any tax imposed by this Article to keep and preserve, for a period of three (3) years, all records as may be necessary to determine the amount of such tax as he/she may have been liable for the remittance to the Tax Administrator, which records the Tax Administrator shall have the right to inspect at all reasonable times. (Ord. 1099, 11-5-1996)

26.03.16: REFUNDS:

A. Whenever the amount of any tax has been overpaid or paid more than once or has been erroneously or illegally collected or received by the Tax Administrator under this Article, it may be refunded by the City as provided in this Section.

B. Notwithstanding the provisions of subsection A of this Section, a service supplier may claim a refund or take as credit against taxes remitted the amount overpaid, paid more than once or erroneously or illegally collected or received when it is established that the service user from whom the tax has been collected did not owe the tax; provided, however, that neither a refund nor a credit shall be allowed unless the amount of the tax erroneously or illegally collected has either been refunded to the service user or credited to charges subsequently payable by the service user to the person required to collect and remit. A service supplier that has collected any amount of tax in excess of the amount of tax imposed by this Article and actually due from a service user may refund such amount to the service user and claim credit for such overpayment against the amount of tax which is due upon any other monthly returns, provided such credit is claimed in a return dated no later than three (3) years from the date of overpayment.

C. No refund shall be paid under the provisions of this Section unless the claimant establishes his/her right thereto by written records showing entitlement thereto.

D. Notwithstanding other provisions of this Section, whenever a service supplier, pursuant to an order of the California Public Utilities Commission or a court of competent jurisdiction, makes a refund to service users of charges for past utility services, the taxes paid pursuant to this Article on the amount of such refunded charges shall also be refunded to service user, and the service supplier shall be entitled to claim a credit for such refunded taxes against the amount of tax which is due upon the next monthly returns. In the event this Article is repealed, the amounts of any refundable taxes will be borne by the City.

E. A service supplier may refund the taxes collected to the service user in accordance with this Section or by the service supplier's customary practice. (Ord. 1099, 11-5-1996)

26.03.17: TERMINATION OR SUSPENSION OF UTILITY USER TAX:

This Ordinance shall be automatically repealed, and the tax no longer collected, as of March 31, 2007, if not repealed earlier by the City Council. Each service supplier shall, upon notification, terminate or suspend any utility user tax commencing with the first full billing period which occurs after the effective date of such action by the City Council. (Ord. 1099, 11-5-1996)

ARTICLE 04 - Back to top

SPECIAL PUBLIC SAFETY TAX

SECTION:

26.04.01: Authority

26.04.02: Maximum Tax Rates

26.04.03: Interpretation and Application of Provisions

26.04.04: Exemptions from Tax

26.04.05: City Council Powers and Duties

26.04.06: Payment of Tax

26.04.07: Collection of Delinquent Taxes; Lien

26.04.08: Disposition of Revenues

26.04.09: Tax Rate Changes; Unexpended Revenues

26.04.10: Amendment or Repeal of Provisions

26.04.11: Termination of Provisions !2R!

26.04.01: AUTHORITY:

Pursuant to the authority of section 4 of article 13A of the California Constitution, there is hereby levied and assessed a special public safety tax by the City on each parcel of property in the City for each fiscal year, commencing with the fiscal year 1991-92 and ending with the fiscal year 1994-95. (Ord. 982, 7-25-90)

26.04.02: MAXIMUM TAX RATES:

Unless territory is annexed to the City following the effective date hereof, the maximum amount of said special public safety tax for each fiscal year shall be as indicated on Exhibit A attached to Ordinance 982 and incorporated herein in its entirety by reference. In the event territory is annexed to the City following the effective date hereof, the special public safety tax shall be imposed on such annexed parcels in the same amounts as other parcels in the same zoning classification, and the maximum amount of said public safety tax for the fiscal year of such annexation and each of the fiscal years thereafter shall be increased by amounts equal to the total special public safety tax imposed on the annexed parcels. (Ord. 982, 7-25-90)

26.04.03: INTERPRETATION AND APPLICATION OF PROVISIONS:

A. The special public safety tax zones shall be those designated on the Official Zone Map of the City.

B. The records of the Los Angeles County Assessor as of March 1 of each year preceding the applicable fiscal year shall determine whether or not any particular lot is unimproved for the purposes of this Section. "Parcel of property", as used in this Article, shall mean any contiguous unit of improved or unimproved real property held in separate ownership including, but not limited to, any single-family residence, or any other unit of real property subject to the California Subdivided Lands Act (Business and Professional Code, section 11000 et seq.).

C. The tax imposed by this Article shall be a tax upon each parcel of property, and the tax shall not be measured by the value of the property.

D. The City Council has determined that fifty nine and one-half percent (59.5%) of the police protection and the fire protection and prevention component of such special public safety tax shall be for police protection, and that forty and one-half percent (40.5%) shall be for fire protection and prevention, and that one hundred percent (100%) of the paramedic component of such special public safety tax shall be for paramedic services. (Ord. 982, 7-25-90)

26.04.04: EXEMPTIONS FROM TAX:

The special public safety tax hereby imposed shall not be imposed upon a Federal or State governmental agency or another local agency or upon any parcel of property that is exempt from the special tax imposed by this Article pursuant to any provision of the Constitution or any paramount law. (Ord. 982, 7-25-90)

26.04.05: CITY COUNCIL POWERS AND DUTIES:

The City Council, by three (3) affirmative votes, is empowered:

A. To establish the amounts of the special public safety tax levy annually each fiscal year in amounts not to exceed the maximum amounts specified for each component of the special public safety tax in Section 26.04.02 of this Article as is required to provide an adequate level of paramedic service, police protection and fire protection and prevention services in the City in accordance with the purposes set forth in this Article.

B. To sit as a Board of Equalization under procedures to be adopted to equalize inequities and reduce hardships created by a literal application of this Article, and such shall be deemed an administrative remedy.

C. To annually provide an official assessment book designating the actual tax levy on each parcel and to place same on file in the office of the City Clerk. (Ord. 982, 7-25-90)

26.04.06: PAYMENT OF TAX:

The special public safety tax imposed by this Article shall be due in two (2) equal installments in accordance with the collection procedures of the Los Angeles County Tax Collector, in the same manner and on the same applicable dates as established by law for the due dates for the other charges and taxes fixed and collected by the County of Los Angeles on behalf of the City. (Ord. 982, 7-25-90)

26.04.07: COLLECTION OF DELINQUENT TAXES; LIEN:

The special public safety tax imposed hereby shall be collected in the same manner, on the same dates and subject to the same penalties and interest in accordance with the established dates as or with other charges and taxes fixed and collected by the County of Los Angeles on behalf of the City, and the said County may deduct its reasonable costs incurred for such services before remittal of the balance to the City.

Said special public safety tax, together with all penalties and interest thereon, shall constitute a lien upon the parcel upon which it is levied until it has been paid, and said special public safety tax, together with all penalties and interest thereon, shall, until paid, constitute a personal obligation to the City by the persons who own the parcel on the date the tax is due. (Ord. 982, 7-25-90)

26.04.08: DISPOSITION OF REVENUES:

The revenue raised by this Article shall be placed in a special fund to be used only for the purposes of obtaining, providing, operating and maintaining paramedic services, police protection and fire protection and prevention, including supplying equipment or apparatus therefor, paying the salaries and benefits to paramedic, police protection and firefighting protection and prevention personnel and for other necessary paramedic expenses, police protection expenses and fire protection and prevention expenses of the City. (Ord. 982, 7-25-90)

26.04.09: TAX RATE CHANGES; UNEXPENDED REVENUES:

A. Pursuant to the California Constitution, article 13B, the appropriations limit for the City will be increased by the maximum projected aggregate collection authorized by levy of this special public safety tax, as indicated in Section 26.04.02 of this Article, in each of the years covered by this Article plus the amount, if any, by which the appropriations limit is decreased by law as a result of the assessment of the special public safety tax set forth in this Article.

B. Unexpended residue of any money raised by the City under this Article may only be used in the succeeding year for the purposes stated in this Article by lowering the next year's tax by the amount unexpended or returned to the taxpayers on the same pro rata basis as originally levied. (Ord. 982, 7-25-90)

26.04.10: AMENDMENT OR REPEAL OF PROVISIONS:

A. The City Council shall be empowered to amend this Article by three (3) affirmative votes of the members thereof for the purposes of carrying out the general purposes hereof in order to conform to State law that permits the County Tax Collector or other proper officials to collect a special tax such as is levied by this Article in conjunction with County taxes or in order to assign duties pursuant to this Article to other officers.

B. This Article or any provisions hereof, other than those provisions, if any, which provide for modification by the City Council, may only be amended or repealed by approval of two-thirds (²/₃) of the voters voting on the provision at any initiative or referendum election. (Ord. 982, 7-25-90)

26.04.11: TERMINATION OF PROVISIONS:

A. This Article shall be null and void as of midnight, June 30, 1995, and shall have no force and effect whatsoever after said time and date, and any action by the legislative body of the City to the contrary, notwithstanding, except that Section 26.04.07 of this Article, relating to the collection and enforcement of liens or obligations for the special public safety tax previously levied hereunder, shall continue in effect until such time as the collection and enforcement procedures have been completed.

B. No section of this Article shall be construed to permit, and the City Council is expressly prohibited from extending, the terms of this Article beyond June 30, 1995, or increasing the maximum amount of any special public safety tax levy or component thereof or penalty imposed by this Article. (Ord. 982, 7-25-90)

CHAPTER XXVII
FRANCHISES/CABLE TELEVISION

Subject Article

Authority to Grant Franchises 01
Refuse Franchises 02
Community Antenna Television Systems 03

ARTICLE 01 - href="city_codes_chpt26_28_files">Back to top

AUTHORITY TO GRANT FRANCHISES

SECTION:

27.01.01: Intent

27.01.02: Authority

27.01.03: Exclusive and Nonexclusive Franchise

27.01.04: Franchise Application

27.01.05: Term of Franchise

27.01.06: Establishing a Franchise Fee !2R!

27.01.01: INTENT:

The City Council does hereby determine it is the interest of the City to grant franchises in order that public utilities and services may be provided to residents and businesses within the City. (Ord. 896, 7-9-86)

27.01.02: AUTHORITY:

The authority of the City to grant franchises is provided by the California Constitution and the Franchise Act of 1937 comprised of sections 6001 et seq. of the California Public Utilities Code. (Ord. 896, 7-9-86)

27.01.03: EXCLUSIVE AND NONEXCLUSIVE FRANCHISE:

The City Council may grant exclusive or nonexclusive franchises within the City, except where specifically precluded by Federal or State statute. (Ord. 896, 7-9-86)

27.01.04: FRANCHISE APPLICATION:

Any business requesting a franchise to provide services within the City must submit an application to the City Manager containing such information as the City Manager or his/her designee may deem appropriate and as may be required by law. (Ord. 896, 7-9-86)

27.01.05: TERM OF FRANCHISE:

The City Council may grant a franchise for a specific period of time or for an indeterminate period of time. (Ord. 896, 7-9-86)

27.01.06: ESTABLISHING A FRANCHISE FEE:

Except as provided by Federal or State statute, the City Council may establish a fee for the purpose of granting a franchise in a manner and amount as it shall deem appropriate. (Ord. 896, 7-9-86)

ARTICLE 02 - Back to top

REFUSE FRANCHISES

SECTION:

27.02.01: Franchise Application

27.02.02: Granting of Franchise

27.02.03: Term of Franchise

27.02.04: Franchise Contract

27.02.05: Business License Required

27.02.06: Vehicle Inspection Requirement

27.02.07: Franchise Requirements

27.02.08: Applicability

27.02.01: FRANCHISE APPLICATION:

Each business desiring a nonexclusive franchise shall submit an application in a form determined by the City Manager. (Ord. 896, 7-9-86)

27.02.02: GRANTING OF FRANCHISE:

The City Council may grant a nonexclusive franchise to a business for the purpose of collecting trash from residential or commercial property within the City. Such nonexclusive franchise shall be granted by a resolution of the Council. No more than two (2) nonexclusive franchises may be granted. (Ord. 093-1049, 12-8-93)

27.02.03: TERM OF FRANCHISE:

Each nonexclusive franchise granted pursuant to Section 27.02.02 of this Article shall be for a term of up to five (5) years. (Ord. 093-1049, 12-8-93)

27.02.04: FRANCHISE CONTRACT:

Upon adoption of a resolution by the City Council approving a nonexclusive franchise, the business shall enter into a franchise contract which shall be prepared by the City Attorney and approved by the City Council. The business shall also provide the following certificates of insurance in amounts to be determined by the City Manager:

A. General liability insurance listing the City as an additional insured.

B. Workers' compensation insurance listing the City as a certificate holder.

C. Automobile liability and medical insurance for all vehicles to be used in the City. (Ord. 896, 7-9-86)

27.02.05: BUSINESS LICENSE REQUIRED:

All businesses granted a nonexclusive franchise pursuant to Section 27.02.02 of this Article shall be required to obtain an annual business license from the City in accordance with Chapter XI of this City Code. (Ord. 896, 7-9-86)

27.02.06: VEHICLE INSPECTION REQUIREMENT:

All refuse disposal trucks operating within the City shall be inspected annually by a licensed vehicle maintenance firm, and a copy of said inspection report shall be presented to the City. Said inspection shall take place prior to the issuance of a business license. (Ord. 896, 7-9-86)

27.02.07: FRANCHISE REQUIREMENTS:

All businesses granted a nonexclusive franchise shall be required to perform the following services as a condition of the franchise:

A. Maintain a telephone with a local prefix for customer inquiries that is staffed during usual business hours.

B. Participate in any recycling program established by the City.

C. Provide a minimum sixty (60) calendar day written notice of any proposed rate change to all customers within the City.

D. Participate in an annual bulk item pickup program established by the City for residential customers as part of the regular fees.

E. Fully cooperate with the City or any firm employed by the City for the purpose of meeting the requirements of any State or Federal mandates and programs related to solid waste management. (Ord. 896, 7-9-86)

27.02.08: APPLICABILITY:

This Article shall apply to all firms having a nonexclusive franchise with the City at the time of and subsequent to the adoption of this Article. (Ord. 896, 7-9-86)

ARTICLE 03 - Back to top

COMMUNITY ANTENNA TELEVISION SYSTEMS

SECTION:

27.03.01: Definitions

27.03.02: Council to Grant Franchise

27.03.03: Grant of Franchise

27.03.04: Uses Permitted by Grantee

27.03.05: Franchise Nonexclusive

27.03.06: Duration of Franchise

27.03.07: Franchise Payments

27.03.08: Limitations of Franchise

27.03.09: Rights Reserved to the City

27.03.10: Permits, Installation and Services

27.03.11: Underground Construction

27.03.12: Removal and Abandonment of Property of Grantee

27.03.13: Street Vacation or Abandonment

27.03.14: Changes Required by Public Improvements

27.03.15: Restoration of Streets

27.03.16: Faithful Performance Bond

27.03.17: Hold Harmless

27.03.18: Comprehensive Liability Insurance

27.03.19: Security Funds

27.03.20: Open Books and Records

27.03.21: Communications with Regulatory Agencies

27.03.22: Operational Standards

27.03.23: Miscellaneous Provisions

27.03.24: Application for Franchise

27.03.25: Application Fee

27.03.26: Effect of Annexation

27.03.27: Renewal of CATV Franchise

27.03.28: New Services

27.03.29: Territorial Area Involved

27.03.30: Acceptance and Effective Date of Franchise

27.03.31: Tree Trimming and Removal

27.03.32: Emergency Work

27.03.33: Subscription Solicitation

27.03.34: Rates and Charges

27.03.35: Authority for Late Charges

27.03.36: Authority for Certain Other Charges

27.03.37: Limitation on Charges

27.03.38: Violations

27.03.39: Effect of Preemption or Deregulation

27.03.40: Use of Telephone Facilities

27.03.41: Franchise Nontransferable

27.03.42: Safety Requirements

27.03.43: Removal of Facilities Upon Request

27.03.44: Repair of Streets and Public Ways

27.03.45: Erection of Poles Prohibited

27.03.46: No Recourse Against City for Losses

27.03.47: Movement of Facilities

27.03.48: Services

27.03.49: Special Service Areas

27.03.50: Revocation of Franchise

27.03.51: Receivership

27.03.52: Authority of City to Terminate in the Event of Condemnation

27.03.53: Continuity of Service Mandatory

27.03.54: Reports

27.03.55: Maintenance and Complaints

27.03.56: Rights Reserved to the Grantee

27.03.57: Rights of Individuals Protected

27.03.58: Federal Regulations

27.03.59: Franchise Resolution

27.03.60: Separability and Severability

27.03.61: Decisions by City

27.03.62: Effective Date of Changes !2R!

27.03.01: DEFINITIONS:

The following words and phrases, when used in this Article, shall have the meanings respectfully ascribed to them in this Section:

BASIC RADIO SERVICE: The distribution of all radio signals, provided at the basic monthly rate, including the retransmission of broadcast FM radio signals, the retransmission of shortwave, weather, news, time and other similar audio broadcast channels and the transmission of cablecast radio signals, as indicated in the franchise resolution.

BASIC SECURITY SYSTEM: A two-way self interrogative alarm system covering at least three (3) doors, one trap, one smoke and a panic alarm, monitored twenty four (24) hours per day.

BASIC SERVICE: The distribution of all television signals provided at the basic monthly rate, including broadcast television and local origination, access, automated-display and special programming signals, as indicated in the franchise resolution.

BASIC SUBSCRIBER: Any person or entity receiving basic service.

CATV: A. A cable television system; and

B. A security system, as hereinafter defined.

CABLE TELEVISION SYSTEM or SYSTEM (also referred to as "cable communications system", "cable TV system", "CATV system", or "broadband communications network"): A system composed of, without limitation, antennas, cables, wires, lines, towers, wireless links, cablecasting studios or any other conductors, converters, equipment or facilities, designed, constructed or wired for the purpose of producing, receiving, amplifying, storing, processing or distributing by coaxial cable audio and/or visual and/or date signals to and from persons, subscribers and locations in the City.

DAY: A calendar day.

EXPANDED SERVICE: Any communications service in addition to basic service provided by the grantee for an additional fee including, but not by way of limitation, pay TV, burglar alarm service, advertising, data or other electronic transmission services, facsimile reproduction services, meter reading services and home shopping services.

FCC: The Federal Communications Commission or any Federal agency assuming the FCC's regulatory and enforcement authority.

FRANCHISE: The nonexclusive authorization granted to occupy or use the streets within the City for the construction, operation and maintenance of a cable television system within all or part of the geographic limits of the City.

FRANCHISE AREA: The territory within the City throughout which grantee shall be authorized to construct, maintain and operate its system and shall include any enlargements thereof and additions thereto.

FRANCHISE RESOLUTION: A signed and notarized statement on the part of both grantor and grantee accepting and agreeing to all of the provisions of a franchise, including referenced specifications, franchise applications and other related material.

GRANTEE: The person, firm or corporation to whom or which a franchise is granted by the City Council under this Article and the lawful successor, transferee or assignee of said person, firm or corporation.

GRANTOR: The City of San Marino as represented by the City Council acting within the scope of its jurisdiction.

GROSS ANNUAL RECEIPTS: Any and all compensation and other consideration in any form whatsoever, and any contributing grant or subsidy, less applicable returns, allowances, discounts and provisions for bad debts, earned directly by grantee from 1) subscribers or users in payment for television or FM radio signals, reception or service received within the City, including installation and line extension charges, 2) any fees or income earned by grantee for carrying advertising or commercial messages over the CATV facilities, and 3) any other revenues for utilization of or connection to the property of grantee to the extent City may, from time to time, legally impose a franchise payment on account thereof. "Gross annual receipts" shall also include any revenues collected through a separate billing procedure by any independent contractor of leased channels of the CATV system and provisions to this effect shall be placed in each lease between the grantee and said independent contractor. Revenues paid to grantee by said independent for lease of such channels shall then be excluded from gross annual receipts of grantee. Notwithstanding the above, gross annual receipts shall also not include any taxes on services furnished by the grantee and imposed directly on any subscriber or user by any city, state or other governmental unit and collected by the grantee for such governmental unit. Gross annual receipts shall be accounted for under the method of accounting employed by grantee for financial purposes.

PROPERTY OF GRANTEE: All property owned, installed or used by a grantee in the conduct of a CATV business in the City under the authority of a franchise granted pursuant to this Article.

STREET or PUBLIC STREET: A street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway or drive which is owned by a public entity in fee or as to which a public entity has an easement for street purposes and with respect to which, and to the extent that, City has a right to grant the use of the surface of, and space above and below in connection with, a franchise for a CATV system.

SUBSCRIBER: Any person or entity receiving for any purpose the CATV service of a grantee. (Ord. 832, 3-11-81) !DEFEND!

27.03.02: COUNCIL TO GRANT FRANCHISE:

The City Council is empowered to grant by resolution, consistent with the requirements of the Federal Communications Commission, a nonexclusive franchise to any qualified person to operate a cable television system, as defined in Section 27.03.01 of this Article, within the City limits.

No provision of this Article may be deemed or construed as to require the granting of a franchise when, in the opinion of the Council, it is in the public interest to restrict the number of grantees to one or more or to refrain from granting any franchise at that time in all or any portion of the City. (Ord. 832, 3-11-81)

27.03.03: GRANT OF FRANCHISE:

In the event that grantor shall grant to the grantee a nonexclusive, revocable franchise to construct, operate, maintain and reconstruct a cable television system, said franchise shall constitute both a right and an obligation to provide the services as required by the provisions of this Article and the franchise resolution. This franchise shall include those provisions of the grantee's "application for franchise" that are finally negotiated and accepted by the grantor and grantee in writing. (Ord. 832, 3-11-81)

27.03.04: USES PERMITTED BY GRANTEE:

Any franchise granted pursuant to the provisions of this Article shall authorize and permit the grantee to engage in the business of operating and providing a CATV system in the City and, for that purpose, to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public street, such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the CATV system and, in addition so to use, operate and provide similar facilities or properties rented or leased from other persons, firms or corporations including, but not limited to, any public utility or other grantee franchised or permitted to do business in the City. (Ord. 832, 3-11-81)

27.03.05: FRANCHISE NONEXCLUSIVE:

Any franchise granted hereby is nonexclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable television system as it deems appropriate. (Ord. 832, 3-11-81)

27.03.06: DURATION OF FRANCHISE:

No franchise granted by the Council under this Article shall be for a term longer than fifteen (15) years following the date of acceptance of such franchise by the grantee. Any such franchise shall terminate, in whole or proportionately, if the City acquires the CATV system property of the grantee or a portion thereof. (Ord. 832, 3-11-81)

27.03.07: FRANCHISE PAYMENTS:

A. As compensation for the franchise to be granted and in consideration of permission to use the streets and public ways of the grantor for the construction, operation, maintenance and reconstruction of a cable television system, the grantee shall pay to the grantor an annual payment equal to three percent (3%) of the grantee's gross annual receipts. Such payments shall be made to the City and are subject to subsection G herein.

B. Payments due to the grantor under this Section shall be computed quarterly, for the preceding quarter, as of March 31, June 30, September 30 and December 31 of each year. Each quarterly payment shall be due and payable no later than sixty (60) days after the dates listed in the previous sentence. Each payment shall be accompanied by a brief report showing the basis for computation and such other relevant facts as may be required by the grantor.

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

D. In the event that the above payment is not received by the City within the specified time, grantee shall pay the City liquidated damages of twenty five percent (25%) per month on the unpaid balance in addition thereto.

E. In the event of any holding over after expiration or other termination of any franchise granted hereunder, without the prior consent of the City expressed by resolution, the grantee shall pay to the City a reasonable compensation and damages of not less than one hundred percent (100%) of its total gross profits before depreciation and excluding any special charges during said period.

F. The grantee shall file with the City, within ninety (90) days after the expiration of any fiscal year of the franchise or portion thereof, during which such franchise is in force, a financial statement prepared by a certified public accountant or a certified financial statement prepared by an appropriate grantee financial officer, showing, in detail, the gross annual receipts, as defined herein, of grantee during the preceding fiscal year or portion thereof. It shall be the duty of the grantee to pay to the City, within ten (10) days after the time for filing such statements, the sum hereinabove prescribed or any unpaid balance thereof for the calendar year or portion thereof covered by such statements.

G. The grantor may increase by resolution the franchise fee on total gross annual receipts of the grantee to such levels as permitted by the Federal regulatory authorities or the courts. Such increase shall be at the sole discretion of the City, and grantee shall neither directly nor indirectly oppose such increase and shall cooperate in seeking the same. (Ord. 832, 3-11-81)

27.03.08: LIMITATIONS OF FRANCHISE:

A. No privilege or exemption shall be granted or conferred by any franchise granted under this Article except those specifically prescribed herein.

B. Any privilege claimed under any such franchise by the grantee in any public street or other public property shall be subordinate to any prior or subsequent lawful occupancy or use thereof by the City or any other governmental entity, shall be subordinate to any prior lawful occupancy or use thereof by any other person and shall be subordinate to any easement therein whether created prior or subsequent to the granting of any franchise hereunder.

C. Time shall be of the essence of any such franchise granted hereunder. The grantee shall not be relieved of its obligation to comply promptly with any of the provisions of this Article by any failure of the City to enforce prompt compliance.

D. Any right or power in, or duty impressed upon, any officer, employee, department or board of the City shall be subject to transfer by the City to any other officer, employee, department or board of the City.

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

F. Any franchise granted hereunder shall be in lieu of any and all other rights, privileges, powers, immunities and authorities owned, possessed, controlled or exercisable by Grantee, or any successor to any interest of grantee or pertaining to the construction, operation or maintenance of any CATV system in the City, and the acceptance of any franchise hereunder shall operate, as between grantee and the City, as an abandonment of any and all of such rights, privileges, powers, immunities and authorities within the City, to the effect that, as between grantee and the City, any and all construction, operation and maintenance by any grantee of any CATV system in the City shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to any other right, privilege, power, immunity or authority whatsoever.

G. The grantee shall, at all times during the life of this franchise, comply with all provisions of existing and future rules and regulations of the City, the State and the United States of America.

H. Any fixture placed or work performed in any public way by the grantee shall be placed or done in such a manner as not to interfere with the usual travel on such public way except with prior approval of grantor. (Ord. 832, 3-11-81)

27.03.09: RIGHTS RESERVED TO THE CITY:

A. Upon the revocation of the franchise, or the expiration of the terms thereof, and upon payment by the grantor to the grantee of the fair market value of the grantee's CATV system, the grantor may purchase, acquire, take over or hold said system. For purposes of this Section, "fair market value" shall be determined by valuing the grantee's system as a going concern. No value shall be assigned to the franchise granted hereunder. Immediately upon a determination of revocation or expiration of the franchise, the grantor and grantee shall attempt to mutually agree upon the fair market value of the system. However, if within a reasonable period of time they cannot agree upon the fair market valuation, then said valuation shall be determined by a three (3) member board of appraisers, one selected by the grantor, one selected by the grantee and one selected by the appraisers themselves. The cost of said appraisal shall be borne equally by the grantor and the grantee. Nothing contained herein shall require the City to so purchase; this is an option only. If no purchase has been made within three (3) years, the property shall be deemed abandoned and worthless as provided by Section 27.03.12 of this Article. The "going concern" value shall be amortized and pro rata reduced during said three (3) year period.

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

C. Neither the granting of any franchise hereunder nor any of the provisions contained herein shall be construed to prevent the City from granting any identical or similar franchise to any other person within all or any portion of the City.

D. Neither the granting of any franchise nor any provisions hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the City now existing or hereafter granted.

E. The Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this Article and may determine any question of fact which may arise during the existence of any franchise granted hereunder. The City Manager is hereby authorized and empowered to adjust, settle or compromise any controversy or charge arising from the operations of any grantee under this Article, either on behalf of the City, the grantee or any subscriber, in the best interest of the public. Either the Grantee or any member of the public who may be dissatisfied with the decision of the City Manager may appeal the matter to the Council for hearing and determination. The Council may accept, reject or modify the decision of the City Manager, and the Council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any grantee or from any provision of this Article. All actions by the Council under this subsection shall be after hearing, upon ten (10) days' written notice to grantee at its address on file with the City. Decisions of the Council hereunder shall be final.

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

G. The grantor may intervene in any suit or proceeding in which the grantee is a party; provided, that the grantor's interests are not adequately represented in the existing parties, and provided further, that the disposition of each suit or proceeding without the grantor's participation may, as a practical matter, impair or impede the grantor's ability to protect those interests.

H. At the expiration of the term for which the franchise is granted or upon its revocation or expiration, as provided for herein, the grantor shall have the right to require the grantee to remove, at its own expense, all portions of the cable television system from all streets and public ways within the City. (Ord. 832, 3-11-81)

27.03.10: PERMITS, INSTALLATION AND SERVICES:

A. Within sixty (60) days after acceptance of any franchise, the grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business including, but not limited to, any utility joint use attachment agreements, microwave carrier licenses and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operations of CATV systems or their associated microwave transmission facilities.

B. In the event that the City permits overhead cable installations, within one hundred fifty (150) days after obtaining the necessary pole agreements with the appropriate public utility, grantee shall commence construction and installation of the CATV system. In the event that underground cables are required, within one hundred fifty (150) days after obtaining permits for such installation in the public right of way, grantee shall commence construction and installation of the CATV system.

C. Within one hundred eighty (180) days after the commencement of construction and installation of the system, grantee shall proceed to render service to subscribers, and the completion of the construction and installation shall be pursued with reasonable diligence thereafter.

D. Grantee shall complete installation of the entire cable television system, except basic security system, to every potential subscriber within twenty four (24) months from the date of the first authorization from the utility company to the grantee allowing for pole attachment plus authorized extensions thereof. Grantee agrees that failure to comply with these requirements will result in damage to the City, and grantee, therefore, agrees that, in addition to any other damages suffered by grantee, it will pay to City the sum of one thousand dollars ($1,000.00) per day for each and every day's delay beyond the time prescribed.

E. By acceptance of the franchise granted hereunder, grantee agrees that failure to comply with any time requirements referred to in subsections A, B and C of this Section will result in damage to the City, and that it is and will be impracticable to determine that actual amount of such damage in the event of delay, and grantee, therefore, agrees that, in addition to any other damage suffered by the City, it will pay to the City the sum of two hundred fifty dollars ($250.00) per day for each and every day's delay beyond the time prescribed, plus authorized extensions thereof, for completion of any of the acts required to be done by this Article. Enforcement of this penalty shall be processed as set forth in Section 27.03.16 of this Article.

F. Failure on the part of the grantee to commence and diligently pursue each of the requirements of this Section and to complete each of the matters set forth herein shall be grounds for termination of such franchise. The Council shall extend the time for the commencement and completion of construction and installation for additional periods in the event that the Council determines that the grantee, acting in good faith, experienced delays by reason of circumstances beyond its control.

G. The grantee shall schedule its construction activities to coordinate with the City's construction activities on the streets so as to avoid unnecessary inconvenience to the public.

H. Grantor may, at its sole option, reduce the duration of the franchise on a month-to-month basis for each month delay in system construction within the grantee's control. (Ord. 832, 3-11-81)

27.03.11: UNDERGROUND CONSTRUCTION:

In all areas of the City where electrical utility and communications facilities are underground, the grantee shall place its cables and distribution equipment underground. When existing aerial utilities in any City area are converted to underground construction, such that both electric and communications utilities are underground, the grantee shall replace aerial facilities with underground facilities concurrently and in cooperation with similar programs of the telephone and power utilities. All underground wires or cables of grantee shall be placed in conduits or, upon the approval of the City Manager, be of material suitable for direct earth burial. Amplifiers in grantee's transmission and distribution lines may be in appropriate pedestals as approved by the City Manager. Prior to excavation, grantee shall obtain excavation permits and approval of the location of underground facilities from the City Manager. (Ord. 832, 3-11-81)

27.03.12: REMOVAL AND ABANDONMENT OF PROPERTY OF GRANTEE:

A. In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of three (3) months, or in the event such system or property has been installed in any street or public place without complying with the requirements of grantee's franchise or this Article or the franchise has been terminated, cancelled or has expired, the grantee shall promptly, upon being given ten (10) days' notice from the City Manager, remove from the street or public places all such property and poles of such system other than any which the City Manager may permit to be abandoned in place. In the event of such removal, the grantee shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the City Manager.

B. Any property of the grantee remaining in place ninety (90) days after the termination or expiration of the franchise shall be, at the option of the Council, considered permanently abandoned. The City Manager may extend such time not to exceed an additional thirty (30) days.

C. Any property of the grantee permitted to be abandoned in place shall be abandoned in such manner as the City Manager shall prescribe. Upon permanent abandonment of the property of the grantee in place, the property shall become that of the City, and the grantee shall submit to the City an instrument, in writing, to be approved by the City Attorney, transferring to the City the ownership of such property.

D. If at any time within three (3) years thereafter, the City decides to reuse said abandoned facilities, it shall first reimburse the grantee as provided in Section 27.03.09 of this Article. After said three (3) years, the City will have no further obligation to grantee. (Ord. 832, 3-11-81)

27.03.13: STREET VACATION OR ABANDONMENT:

In the event any street, alley, public highway or portion thereof used by the grantee shall be vacated by the grantor or the use thereof discontinued by the grantee during the term of this franchise, the grantee, at its cost, shall forthwith remove its facilities therefrom unless specifically permitted to continue the same and, on the removal thereof, restore, repair or reconstruct the street area where such removal has occurred in such condition as may be required by the grantor. In the event of failure, neglect or refusal of the grantee, after thirty (30) days' notice by the grantor, to repair, improve or maintain such street portion, the grantor may do such work or cause it to be done, and the cost thereof, as found and declared by the grantor, shall be paid by the Grantee. (Ord. 832, 3-11-81)

27.03.14: CHANGES REQUIRED BY PUBLIC IMPROVEMENTS:

The grantee shall, from time to time, protect, support, temporarily dislocate, temporarily or permanently as may be required, remove or relocate, without expense to the City or any other governmental entity, 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 the construction of any subway or viaduct, by the City or any other governmental entity, or made necessary by any other public improvement or alteration in, under, on, upon or about any public street or other public property, whether such public improvement or alteration be at the insistence of the City or another governmental entity, and whether such improvement or alteration is for a governmental or proprietary function or made necessary by traffic conditions, public safety, street vacation or any other public project or purpose of the City or any other governmental entity. (Ord. 832, 3-11-81)

27.03.15: RESTORATION OF STREETS:

Whenever the grantee shall disturb the surface of any street, alley, public highway or ground for any purpose mentioned herein, it shall restore the same to the condition in which it was prior to the opening thereof, and when any opening is made by the grantee in any hard surface pavement in any street, alley or public highway, the grantee shall promptly refill the opening and restore the pavement. The grantor may refill and/or repave in case of neglect of the grantee. The cost thereof, including the cost of inspection and supervision, shall be paid by the grantee. All excavations made by the grantee in the streets, alleys and public highways shall be properly safeguarded for the prevention of accidents. The work hereby required shall be done in strict compliance with the rules, regulations and ordinances of the City as now or hereafter provided. (Ord. 832, 3-11-81)

27.03.16: FAITHFUL PERFORMANCE BOND:

A. Grantee shall, at the time of signing the franchise resolution, file with the City a certificate of deposit or other mutually acceptable short term money market certificate in the principal amount of three hundred fifty thousand dollars ($350,000.00). All income earned on said instrument shall belong to the grantee and may be withdrawn by the grantee at any time. Said instrument or the proceeds thereof shall be returned to grantee upon the date that the cable television system, as defined in Section 27.03.01 of this Article, is made available to the entire City, less any fine, penalty or expenditure said three hundred fifty thousand dollars ($350,000.00) shall guarantee.

B. The grantee shall, concurrently with the filing of and acceptance of award of any franchise granted under this Article, file with the City Clerk, and at all times thereafter maintain in full force and effect until the date that the cable television system, as defined in Section 27.03.01 of this Article, is made available to the entire City, at the grantee's sole expense, a corporate surety construction bond in a company and in form and content approved by the City Attorney, in the minimum amount of one million dollars ($1,000,000.00), renewable annually, and conditioned upon the faithful performance by the grantee of all obligations imposed by such franchise and this Article and all applicable laws, including the full amount of any compensation, indemnifications or cost of removal or abandonment of any property of the grantee, plus a reasonable allowance for attorneys' fees and costs, and specifically including the payment of the annual franchise fees as herein provided.

C. Neither the provisions of this Section, nor any bond accepted by the City pursuant hereto, nor any damages recovered by the City hereunder, shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under any franchise issued hereunder or for damages, either to the full amount of the bond or otherwise.

D. The construction bond shall provide that sixty (60) days prior written notice of intention not to renew, cancellation or material change be given to the City, in which event, grantee shall provide a substitute bond complying with this Section in form and content approved by the City Attorney.

E. Funds represented by the aforestated certificate and bond shall be recoverable by the grantor in case of noncompliance by the grantee, its assignees, vendees, lessees or successors in interest. (Ord. 832, 3-11-81)

27.03.17: HOLD HARMLESS:

The grantee shall defend, indemnify and hold harmless the City, its officers, boards, commissions, agents and employees and each of them against and from any and all claims, demands, actions, suits, liabilities and judgments of every kind and nature and regardless of the merit of the same, arising out of or related to the exercise or enjoyment of any franchise granted pursuant to the provisions of this Chapter, including costs of investigations, attorneys' fees and court costs in the defense of any actions, to the extent that such claims or demands are alleged to be the result of an error, omission, intentional act or negligent act of grantee or any persons employed by grantee, even if that grantee employee is in error or by misinformation alleged to be a grantor employee. (Ord. 832, 3-11-81)

27.03.18: COMPREHENSIVE LIABILITY INSURANCE:

A. Upon acceptance of such franchise, the grantee shall file with the City Clerk and shall, thereafter during the entire term of such franchise, maintain in full force and effect, at its own expense, a general comprehensive liability insurance policy or policies provided by a company authorized to do business in the State, in a company and form approved by the City Attorney, protecting the City, its Council, boards, commissions, members thereof and all officers, employees and agents, and each of them, against liability for loss or damages for personal injury, death and property damage occasioned by the operations of grantee, with the minimum liability amounts set by the grantor in the franchise resolution.

B. The policy or policies shall name the City, its officers, boards, commissions, agents and employees, and each of them, as additional insured and shall contain a provision that a written notice of any cancellation, modification or reduction in coverage of said policy shall be delivered to the City Clerk sixty (60) calendar days in advance of the effective date thereof. Such insurance shall be primary insurance not contributing to any insurance held by the City. No franchise granted under this Chapter shall be effective unless and until each of the foregoing policies of insurance as required in this Section has been approved by the City Attorney and delivered to the City Clerk. Any substitute policy or policies shall be subject to the same approvals and shall comply with all of the provisions of this subsection. (Ord. 832, 3-11-81)

27.03.19: SECURITY FUNDS:

A. Concurrently with the execution of the franchise resolution, the grantee shall deposit into a bank account of the grantor, established by the grantor, and maintain on deposit throughout the term of this franchise, the sum of not less than fifty thousand dollars ($50,000.00) as security for the faithful performance by it of all the provisions of this franchise and compliance with all orders, permits and directions of any agency of the grantor having jurisdiction over its acts or defaults under this contract and the payment by the grantee of any claims, liens and taxes due to the grantor which arise by reason of the construction, operation or maintenance of the system. The grantee shall have the right to earn and withdraw interest on unused balances of funds deposited in the security fund.

B. Within thirty (30) days after notice to it that any amount has been withdrawn by the grantor from the security fund pursuant to subsection A of this Section, the grantee shall deposit a sum of money sufficient to restore such security fund to the original amount, or grantee shall be deemed to be in default.

C. If the grantee fails, after ten (10) days' notice to pay to the grantor any franchise fee due and unpaid or fails to repay to the grantor within such ten (10) days, any damages, costs or expenses which the grantor shall be compelled to pay by reason of any act or default of the grantee in connection with this franchise or fails, after thirty (30) days' notice of such failure by the grantor, to comply with any provision of the franchise which the grantor reasonably determines can be remedied by an expenditure of the security, the grantor may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the grantor 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 grantor in the event that the 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 grantor with respect to the security fund are in addition to all other rights of the grantor whether reserved by this Chapter 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 grantor may have. (Ord. 832, 3-11-81)

27.03.20: OPEN BOOKS AND RECORDS:

A. The grantee shall maintain an office within the City and manage all of its operations in accordance with a policy of totally open books and records. The grantor shall have the right to inspect, at any time during normal business hours, all books, records, maps, plans, income tax returns, financial statements, service complaint logs, performance test results and other like materials of the grantee which relate to the operation of the franchise. Access to the aforementioned records shall not be denied by the grantee on the basis that said records contain "proprietary" information.

B. The grantee shall, at all times, make and keep in the City full and complete plans and records showing the exact location of all CATV system equipment, except basic security system equipment installed or in use in streets and other public places in the City.

C. The grantee shall file with the City Manager, on or before the last day in December of each year, a current map or set of maps, drawn to scale, showing all CATV system equipment, except basic security system equipment, installed and in place in streets and other public places of the City.

D. Records excluded in subsections B and C above shall be filed with the Police Chief of the City and will not be matters of public record. (Ord. 832, 3-11-81)

27.03.21: COMMUNICATIONS WITH REGULATORY AGENCIES:

Copies of all petitions, applications, communications and reports submitted by the grantee to the Federal Communications Commission, Security and Exchange Commission or any other Federal or State regulatory commission or agency having jurisdiction in respect to any matters affecting cable communications systems authorized pursuant to this franchise shall also be submitted within twenty (20) days to the grantor if such petition, application, communication or report materially or directly affects cable communications operations pursuant to this franchise. Copies of responses from the regulatory agencies to the grantee shall likewise be furnished within twenty (20) days to the grantor. (Ord. 832, 3-11-81)

27.03.22: OPERATIONAL STANDARDS:

The CATV system, except basic security system, shall provide to subscribers such broadcast TV channels and FM stations and such nonbroadcast services as shall be designated in the franchise resolution. For TV channels so designated, grantee shall provide to each subscriber whose TV receiver is in good operating condition and within the designated subscriber charges, good quality coordinated sound and video signals without material degradation in color fidelity and intelligence and without material video signal distortion or interferences such as, but not limited to, "snow" and multiple images. FM stations so designated shall be received without material degradation or distortion from such FM receivers of subscriber as are in good operating condition. In addition to the foregoing, the CATV system, except basic security system, shall be installed and maintained in accordance with the highest and best accepted standards of the industry to the effect that subscribers shall receive the highest possible service, and the following requirements shall apply:

A. Provide, maintain and operate facilities which deliver signals of adequate strength to produce good video signals with good sound at all outlets and meet FCC and cable television standards.

B. Limit system failure to a minimum time duration by locating and correcting malfunctions promptly but in no event longer than twenty four (24) hours after notice for at least ninety percent (90%) of all malfunctions.

C. Upon complaint to the City by a subscriber, make a demonstration satisfactory to the City Manager or designated staff that a signal is being delivered which is of sufficient strength and quality to meet the standards set forth in this Section.

D. Render efficient service, making repairs promptly and interrupting service only for good cause and for the shortest time possible; such interruptions, insofar as possible, shall be preceded by notice given to subscribers twenty four (24) hours in advance and shall occur during period of minimum use of the system.

E. Maintain an office at a place approved by the City Council, which office shall be open during all the usual business hours, have a telephone number listed in the directories of local telephone companies and be so operated that complaints and requests for repairs or adjustments may be received at any time. In addition, a twenty four (24) hour per day answering or referral telephone number shall be provided to accept subscriber complaints and requests after normal business hours.

F. Keep a maintenance service log which will indicate the nature of each service complaint, the date and time it was received, the disposition of said complaint and the time and date cleared. This log shall be made available for periodic inspection by the City.

G. The grantee, in its acceptance of any franchise granted hereunder, shall declare its policy against the carriage of x-rated movies or other such visual material. The grantee shall comply with all Federal, State and City laws prohibiting the display of obscene materials. In the event of a dispute regarding this matter that is not covered by a Federal, State or City law, the City Council shall make the final determination. Such determination shall be deemed a legislative decision as part of this Article.

H. The grantee shall operate and maintain its cable television system in full compliance with all applicable standards set forth by the Federal Communications Commission.

I. Grantee shall make available to subscribers, at a reasonable cost, locking keys (parental control devices) to control the use of premium programming.

J. The CATV system shall be installed and maintained in accordance with specifications set forth in grantee's proposal and will be upgraded, from time to time, consistent with sound business and economic considerations to reflect technological advances in the CATV system which substantially improve the quality and reliability thereof.

K. The basic security system shall be installed and maintained in accordance with specifications set forth in grantee's proposal and will be upgraded, from time to time, consistent with sound business and economic considerations to reflect technological advances in the basic security system which substantially improve the quality and reliability thereof. (Ord. 832, 3-11-81)

27.03.23: MISCELLANEOUS PROVISIONS:

A. When not otherwise prescribed herein, all matters herein required to be filed with the City shall be filed with the City Clerk.

B. Grantee shall have no financial interest, directly or indirectly, nor shall any of its officers, shareholders or employees, in any TV or radio sales or repair business, nor shall grantee or any of such persons accept or receive referral fees or gratuities from any such sales or repair business. Any violation of this paragraph, unknown to grantee, by an employee of grantee who is not an officer shall not constitute a breach of this subsection unless grantee shall fail to institute prompt remedial action upon discovery thereof.

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

D. All notices which the City may give to grantee or which grantee may give to the City shall be given in writing and may be given by first class mail, postage prepaid, addressed to grantee's most recent address on file with the City, and addressed to the City at its City Hall. Such notices, so sent by mail, shall be deemed given one day after deposit in the U.S. mail if so deposited in Los Angeles County; otherwise, they shall be deemed given upon receipt. (Ord. 832, 3-11-81)

27.03.24: APPLICATION FOR FRANCHISE:

A. Application for franchise hereunder shall be in writing, shall be filed with the City Clerk, and shall contain, but not be limited to, the following information:

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

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

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

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

5. A statement or schedule of proposed rates and charges to subscribers for installation and services and a copy of proposed service agreement between the grantee and its subscribers shall accompany the application.

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

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

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

9. A statement as to when construction will begin after the date of the granting of the franchise and after the execution of the utility agreement described in subsection A6 hereof.

10. A statement indicating where other CATV franchises are held and how many existing subscribers are serviced.

11. A statement of intent with regard to program origination and acceptance of local advertising shall be included.

12. The number and identification of channels proposed to be carried on the CATV system.

13. A detailed listing of operating equipment, including model numbers and types, with an "equal or better" guarantee.

14. A proposed subscriber complaint processing and equipment repair procedure.

15. A proposed "proof of performance" description, listing tests to be performed and equipment utilized.

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

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

D. Any franchise granted pursuant to this Chapter shall include the following condition:

The CATV system herein franchised shall be used and operated solely and exclusively for the purpose expressly authorized by ordinance of the City and no other purpose whatsoever.

Inclusion of the foregoing statement in any such franchise shall not be deemed to limit the authority of the City to include any other reasonable condition, limitation or restriction which it may deem necessary to impose in connection with such franchise pursuant to the authority conferred by this Section. (Ord. 832, 3-11-81)

27.03.25: APPLICATION FEE:

Each application shall be accompanied by an application fee in the sum of two thousand five hundred dollars ($2,500.00) which shall be used by the City to cover the costs of reviewing, investigating and processing such an application. This fee is not refundable. In addition, any City costs attributable to the review, analysis and implementation of the franchise may be charged back to the grantee in an amount not to exceed ten thousand dollars ($10,000.00). The necessity and validity of these charges is within the sole discretion of the City. (Ord. 832, 3-11-81)

27.03.26: EFFECT OF ANNEXATION:

A. In the event any new territory shall be annexed to the City which is contiguous to only one franchise area in the City, such new territory shall become, by operation of law, a part of such franchise area immediately upon the effective date of such annexation.

B. In the event any new territory shall become annexed to the City which is contiguous to more than one franchise area in the City or is not contiguous to any franchise area, then the Council shall determine, at a public hearing, which grantee or grantees, if any, shall serve such new territory.

C. In the event any portion of the unincorporated territory covered by an existing franchise or license granted by the County is annexed to the City prior to the time that the grantee of such County franchise or license has commenced installation of a CATV system within said territory, all rights acquired by said grantee under its County franchise or license shall terminate by operation of law as of the date on which the annexation to the City becomes effective.

D. In the event any portion of unincorporated territory covered by existing franchise or license granted by the County is annexed to the City after the grantee thereof has commenced or completed construction and installation of a CATV system within said territory, the rights reserved under such franchise or license to the County or to any officer thereof shall inure to the benefit of the City and all regulatory provisions of this Chapter, and any other rules and regulations applicable to CATV systems operating within the City, whether then in effect or subsequently adopted, shall be applicable to and binding upon said grantee. In addition, the grantee shall be obligated to pay annually to the City, the percentage of the gross receipts established by the County in said franchise or license which is derived from its operations within the annexed territory for five (5) years or upon termination of the franchise, whichever is of the shorter time duration, at which time, the Council may establish the percentage of gross receipts to be paid to the City. (Ord. 832, 3-11-81)

27.03.27: RENEWAL OF CATV FRANCHISE:

A. The franchise granted pursuant to this Chapter will be granted for an initial term of ten (10) years with the right and option of the grantee to renew for an additional term of five (5) years, subject only to the City review of rates and services with the grantee. Reasonable adjustments may be made in such rates and services consistent with sound economic considerations. If agreement is reached, the remaining five (5) years shall follow under the revisions; if not, the franchise shall terminate.

B. Upon expiration of the fifteenth year of the franchise, the grantor shall have the right, at its election, to:

1. Renew or extend the franchise for such additional period and upon such other terms as may be agreed by the grantor and grantee, with preference to grantee;

2. Invite additional franchise applications or proposals; or

3. Terminate the franchise without further action.

The grantee shall make it a condition of each contract entered into by it that the grantor shall have the right to exercise these options.

C. No franchise or renewal thereof may be assigned, sold, leased or otherwise transferred without consent of the City, which consent shall not be unreasonably withheld. (Ord. 832, 3-11-81)

27.03.28: NEW SERVICES:

It shall be the policy of the City to liberally amend this franchise, upon application of the grantee, when necessary to take advantage of any development in the field of transmission of television and radio signals which will afford it an opportunity to more effectively, efficiently or economically serve its customers. Provided, however, that this Section shall not be construed to require the City to make any amendment or to prohibit it from unilaterally changing its policy stated herein. (Ord. 832, 3-11-81)

27.03.29: TERRITORIAL AREA INVOLVED:

This franchise relates to the present territorial limits of the City and to any area henceforth added thereto during the term of this franchise. (Ord. 832, 3-11-81)

27.03.30: ACCEPTANCE AND EFFECTIVE DATE OF FRANCHISE:

A. No franchise granted pursuant to the provisions of this Article shall become effective unless and until the resolution granting same has become effective and, in addition, unless and until all things required by this Article are done and completed, all of such things being hereby declared to be conditions precedent to the effectiveness of any such franchise granted hereunder. In the event any of such things are not done and completed in the time and manner required, the Council may declare the franchise null and void.

B. Within twenty (20) days after the effective date of the resolution awarding a franchise or within such extended period of time as the Council, in its discretion, may authorize, the grantee shall file with the City Clerk its written acceptance, in a form satisfactory to the City Attorney, of the franchise, together with all bonds and insurance policies required by this Chapter, together with its agreement to be bound by and to comply with and to do all things required of it by the provisions of this Article and the franchise. Such acceptance and agreement shall be acknowledged by the grantee before a notary public and shall, in form and content, be satisfactory to and approved by the City Attorney. (Ord. 832, 3-11-81)

27.03.31: TREE TRIMMING AND REMOVAL:

The grantee shall not remove any tree or trim any portion, either above, at or below ground level, or any tree within any public place without the prior consent of the City. The City shall have the right to do the work with the actual cost thereof to be paid by the grantee. If such trimming is not performed by the City, the grantee shall be responsible for any and all damages to any tree as a result of trimming or to the land surrounding any tree, whether such tree is trimmed or removed. Grantee shall only use a tree trimming firm licensed to do business within the City. (Ord. 832, 3-11-81)

27.03.32: EMERGENCY WORK:

The City reserves the right to remove any portion of the grantee's equipment and facilities as may be required in any emergency, as determined by the City, without liability for interruption of service, and the City shall not be obligated to restore service or to pay the costs of expenses of restoring service. (Ord. 832, 3-11-81)

27.03.33: SUBSCRIPTION SOLICITATION:

No subscription shall be solicited from potential subscribers until the service is actually available to the solicited subscriber, and all subscription material shall contain disclaimers showing no City endorsement. (Ord. 832, 3-11-81)

27.03.34: RATES AND CHARGES:

The initial rates for basic service, installation and connection charges shall not exceed the rates set forth in the franchise resolution. Basic service rates and charges shall not be increased until basic service has been furnished to the entire City as more fully set forth in the franchise resolution.

Should Federal regulatory agencies provide grantor with the right to review and approve rates and charges for CATV system services, such right for review and approval shall be deemed automatically a part of this Article and the franchise agreement. (Ord. 832, 3-11-81)

27.03.35: AUTHORITY FOR LATE CHARGES:

The grantee may impose a late charge of one and one-half percent (1¹/₂%) per month or the maximum rate permitted by law, whichever is less, for each monthly payment not paid within thirty (30) days of the prescribed date of required payment. (Ord. 832, 3-11-81)

27.03.36: AUTHORITY FOR CERTAIN OTHER CHARGES:

If a subscriber of grantee shall become in arrears more than forty five (45) days in the payment of a valid billing of grantee, grantee shall have the right, with five (5) days' prior written notice, to disconnect subscriber from its system. After such disconnection, if the subscriber wishes future service from grantee, the subscriber shall be obligated to pay the authorized reconnection fee and balance due.

If, however, the grantee shall travel to the subscriber's location and, prior to disconnection, the subscriber shall pay the grantee the arrearage in order to prevent the disconnection, grantee shall be entitled to charge each such subscriber a fee not to exceed ten dollars ($10.00) for the costs incurred. (Ord. 832, 3-11-81)

27.03.37: LIMITATION ON CHARGES:

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

B. If, in the future, the State or any other public agency regulates the rates of the grantee for the service provided for in this franchise, this Section shall be of no effect during such State regulation to the extent of any conflict therewith.

C. The grantee shall credit or refund to the subscriber an amount equal to one day's service charge for each day service is interrupted whenever service is not provided for a period of two (2) consecutive days beginning from the time such outage is reported to the grantee; except when such outage is caused by circumstances outside the grantee's control, such as fire, earthquake, riot and other similar circumstances. (Ord. 832, 3-11-81)

27.03.38: VIOLATIONS:

A. From and after the effective date hereof, it shall be unlawful for any person to establish, operate or to carry on the business of distributing to any persons in this City any television signals by means of a CATV system unless a franchise therefor has first been obtained pursuant to the provisions of this Article and unless such franchise is in full force and effect.

B. From and after the effective date hereof, it shall be unlawful for any person to construct, install or maintain within any public street in the City or within any other public property of the City or within any privately-owned area within the City which has not yet become a public street but is designed or delineated as a proposed street on any tentative subdivision map approved by the City, any equipment or facilities for distributing any television signals or radio signals through a CATV system unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this Article and unless such franchise is in full force and effect.

C. It shall be unlawful for any person to make any unauthorized connection, to knowingly utilize an unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within this City for the purpose of taking or receiving television signals, radio signals, pictures, programs or sound.

D. It shall be unlawful for any person to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within the City for the purpose of enabling himself/herself or others to receive any television signal, radio signal, picture, program or sound, without payment to the owner of said system.

E. It shall be unlawful for any person, without the consent of the owner, to wilfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound. (Ord. 832, 3-11-81)

27.03.39: EFFECT OF PREEMPTION OR DEREGULATION:

In the event the Federal Communications Commission or the Public Utilities Commission of the State or any other Federal or State body or agency shall hereafter exercise any paramount jurisdiction over the subject matter of any franchise hereunder, then, to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the City, the jurisdiction of the City shall, to the extent so preempted or precluded, cease and no longer exist; provided, however, that any deregulation by any Federal or State body or agency or the preemption or preclusion of the exercise by the City of any of its police power shall not diminish, impair, alter or affect any contractual obligation of the grantee under any franchise issued hereunder, and in this respect, any and all minimum standards governing the operation of grantee and any and all maximum rates, ratios and charges specified herein or in any franchise issued hereunder existing now and at any time in the future, including such time as such paramount jurisdiction shall preempt or preclude that of the City in any and all powers, rights, privileges and authorities of the City to determine, establish or fix any of the same, are each and all hereby declared by the City and by any grantee accepting any franchise hereunder, to be contractual in nature and to be for the benefit of the City and all subscribers situated therein, and agreement of Grantee to accept and conform to such standards, rates, ratios and charges is hereby declared by the City and by any grantee accepting the franchise hereunder to be the most material and essential consideration for the granting of such franchise, the absence of which, in whole or in part, would cause the City not to have granted such franchise. (Ord. 832, 3-11-81)

27.03.40: USE OF TELEPHONE FACILITIES:

When, and in the event that, the grantee of any franchise granted hereunder uses in its CATV system distribution channel as furnished to the grantee by a telephone company pursuant to tariff or contract on file with a regulatory body having jurisdiction and said grantee makes no use of the street independent of such telephone company furnished facilities, said grantee shall be required to comply with all of the provisions hereof as a "permittee", and in such event, whenever the term "grantee" is used herein, it shall be deemed to include "permittee". No provision of this Article shall be deemed or construed as requiring the granting of a franchise hereunder to a telephone company furnishing such a channel service. (Ord. 832, 3-11-81)

27.03.41: FRANCHISE NONTRANSFERABLE:

Any such franchise shall be a privilege to be held in personal trust by the original grantee. It cannot, in any event, be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale or by voluntary sale, merger, consolidation or otherwise without the prior consent of the Council, expressed by resolution, after receipt of any proposed contractual documents, including the consideration and then only under such conditions as may in said resolution be prescribed. Any such transfer or assignment shall be made only by an instrument in writing, a duly executed copy of which shall be filed with the City Clerk within thirty (30) days after any such transfer or assignment. The said consent of the Council may not be arbitrarily refused; provided, however, the proposed assignee must show financial responsibility and must agree to comply with all provisions of this Article and of the franchise. In order that the City may exercise its option to take over the facilities and properties of the CATV system authorized herein upon expiration or forfeiture of the rights and privileges of the grantee under this franchise as is provided for herein, the grantee shall not make, execute or enter into any deed, deed of trust, mortgage, conditional sales contract or any loan, lease, pledge, sale, gift or similar agreement concerning any of the facilities and property, real or personal, of the CATV business without prior approval of the City Council upon its determination that the transaction proposed by the grantee will not be inimical to the rights of the City under this franchise. Provided, however, that this Section shall not apply to the disposition of worn or obsolete facilities or personal property in the normal course of carrying on the CATV business. A request for Council consent must be accompanied with a fee of two thousand five hundred dollars ($2,500.00) to assist in defraying City investigation expenses. (Ord. 832, 3-11-81)

Prior approval of the City Council shall be required when ownership or control of more than thirty percent (30%) of the right of control of grantee is acquired by a person or group of persons acting in concert, none of whom already own or control thirty percent (30%) or more of such right of control, singularly or collectively. By its acceptance of this franchise, the grantee specifically grants and agrees that any such acquisition occurring without prior approval of the City Council shall constitute a violation of this franchise by the grantee. (Ord. 832, 3-11-81)

27.03.42: SAFETY REQUIREMENTS:

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

B. The grantee shall install and maintain its wires, cables, fixtures and other equipment in accordance with the requirements of the National Electrical Code, as it now exists or hereafter may be amended and in such manner that they will not interfere with any installations of the City or of a public utility serving the City.

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

D. The grantee shall strictly adhere to all building and zoning codes currently or hereafter in force. The grantee shall arrange its lines, cables and other appurtenances, on both public and private property, in such a manner as to cause no unreasonable interference with the use of said public or private property by any person. (Ord. 832, 3-11-81)

27.03.43: REMOVAL OF FACILITIES UPON REQUEST:

Upon termination of service to any subscriber, the grantee shall promptly remove all its facilities and equipment from the premises of such subscriber upon his/her request and at no cost to the subscriber. (Ord. 832, 3-11-81)

27.03.44: REPAIR OF STREETS AND PUBLIC WAYS:

Any and all streets and public ways which are disturbed or damaged during the construction, operation, maintenance or reconstruction of the cable television system shall be promptly repaired by the grantee, at its expense, and to the satisfaction of the grantor. (Ord. 832, 3-11-81)

27.03.45: ERECTION OF POLES PROHIBITED:

The grantee is expected to make use of existing aerial poles. However, the grantee shall have the right to erect poles if written permission is obtained from the grantor. Provided, however, that any such poles may not be erected or maintained in any public highway in which there exists or is being erected a pole line of any public or private corporation or person engaged in service to the public as an electric or telephone public utility and which pole line is reasonably available to the grantee for use pursuant to a pole contract rental agreement. (Ord. 832, 3-11-81)

27.03.46: NO RECOURSE AGAINST CITY FOR LOSSES:

The grantee shall have no recourse whatsoever against the City or any of its officers or employees for any loss, costs, expense or damages arising out of any provisions or requirement of this Article or said franchise or from any attempt at enforcement or clarification of any provisions or requirements of this Article or the resolution granting the franchise or the enforcement of this Article or said franchise. Any franchise granted under this Article shall not relieve the grantee of any obligation involved in obtaining pole space from any department of the City, the utility companies or from others maintaining poles in streets, as herein defined, or other public easements or public properties. Nothing in this Article is to be construed as granting to the grantee the right to cross or trespass upon, in any way, with cable or with any other type of structure or installation, property which is not public property or within a suitable right of way. (Ord. 832, 3-11-81)

27.03.47: MOVEMENT OF FACILITIES:

In the event it is necessary to temporarily move or remove any of the grantee's wires, cables, poles or other facilities placed pursuant to the franchise in order lawfully to move a large object, vehicle, building or other structure over the streets, alleys or highways of the grantor, grantee shall, upon reasonable notice, move, at the expense of the person requesting temporary removal, such of its facilities as may be required to facilitate such movements. (Ord. 832, 3-11-81)

27.03.48: SERVICES:

Services shall be offered to all City residents in accordance with the provisions of the franchise resolution. The grantee shall not materially reduce the level of service without permission of the City but may, at its discretion, substitute programming to offer subscribers an equal or better array of services. (Ord. 832, 3-11-81)

27.03.49: SPECIAL SERVICE AREAS:

Upon petition by the grantee, the Council may defer or indefinitely suspend any expansion into such a special service area required by this Chapter after a showing by grantee that such expansion would cause unreasonable financial hardship to grantee. The adequacy of such a showing shall be determined and weighed against the public interest in system expansion by the Council, after a public hearing, and shall be a legislative determination. (Ord. 832, 3-11-81)

27.03.50: REVOCATION OF FRANCHISE:

Any franchise issued hereunder may, after dues notice to grantee and a public hearing, be revoked, altered or suspended by the Council as it deems necessary on any of the following grounds:

A. For wilful false or misleading statement in or material omission from any application.

B. For failure to file and maintain the bond, security or insurance or pay franchise fees required under this Chapter.

C. For repeated failure, as determined by the Council, to maintain signal quality in accordance with this Chapter and FCC standards.

D. For any sale, lease, assignment or transfer of control of its franchise without prior consent of the Council.

E. For violation of material terms of this Article or material terms of a franchise resolution issued pursuant to this Article such as, but not limited to, any delay in beginning construction or excessive delay in meeting the construction schedule or delay in offering basic subscriber television and radio service or delay in completing construction of the cable television system.

F. If the grantee becomes insolvent, unable or unwilling to pay its debts or is adjudged a bankrupt or all or part of grantee's facilities should be sold under an instrument to secure a debt and are not redeemed by grantee within thirty (30) days from said sale.

G. If the grantee attempts to or practices any fraud or deceit in its conduct or relations under the franchise.

H. If the grantee should fail to receive or to obtain all necessary pole right agreements for any reason within ninety (90) days after the effective date of the franchise due to its own lack of diligence and effort.

I. If the grantee fails to meet any condition established in a franchise resolution or if the grantee fails to perform as required in areas designated as grounds for revocation in the franchise resolution.

Upon determination by the City Manager that one or more of the above grounds for revocation, alteration or suspension of the franchise exists, the City shall notify the grantee of that determination and shall state the major causes and reasons supporting the determination. The grantee shall be granted ten (10) days to respond to the notification statement. The City shall consider the response of the grantee, if any, and may terminate, postpone for a period or proceed with the revocation, alteration or suspension process.

No such revocation shall be effective unless or until the Council shall have adopted a resolution setting forth the cause and reasons for the revocation and the effective date thereof. In the event the revocation depends upon a finding of fact, such finding of fact, as made by the City Manager or other designated City official and reported to the Council, shall be stated in such resolution.

Upon revocation of a franchise, the City may, by resolution, declare a forfeiture, whereupon all rights of the holders of the franchise shall immediately be divested without a further act upon the part of the grantor, and the grantee shall forthwith remove its structures or property from the streets and restore the streets to such condition as the grantor may require, and upon failure to do so, the grantor may perform the work and collect the cost thereof from the grantee. (Ord. 832, 3-11-81)

27.03.51: RECEIVERSHIP:

Upon the foreclosure or other judicial sale of all or a substantial part of the CATV system or upon the termination of any lease covering all or a substantial part of the CATV system, the grantee shall notify the City Clerk of such fact, and such notification shall be treated as a notification that a change in control of the grantee has taken place, and the provisions of this Article governing the consent of the Council to such change in control of the grantee shall apply.

The grantor shall have the right to revoke the franchise one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of the grantee, whether in receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days or unless:

A. Within one hundred twenty (120) days after his/her election or appointment, such receiver or trustee shall have fully complied with all the provisions of the franchise and remedied all defaults thereunder; and

B. Such receiver or trustee, within said one hundred twenty (120) days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee assumed and agrees to be bound by each and every provision of the franchise. (Ord. 832, 3-11-81)

27.03.52: AUTHORITY OF CITY TO TERMINATE IN THE EVENT OF CONDEMNATION:

In order to preserve the right of the City under the franchise provided for, and its right to acquire the property of the grantee by purchase or by eminent domain proceedings at its then fair market value, at any time during the existence of the franchise, it is especially provided that if at any time the franchise shall become the subject of eminent domain proceedings by the City, the City reserves and shall have the right at the time such proceedings are commenced, or at any time thereafter, to terminate said franchise by resolution. (Ord. 832, 3-11-81)

27.03.53: CONTINUITY OF SERVICE MANDATORY:

It shall be the right of all subscribers to receive all available services insofar as their financial and other obligations to the grantee are honored. In the event that the grantee elects to overbuild, rebuild, modify or sell the system or the grantor revokes or fails to renew the franchise, the grantee shall do everything in its power to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances during the lifetime of the franchise. In the event of purchase by the grantor or a change of grantee, the current grantee shall cooperate with the grantor to operate the system for a temporary period, during which time grantee shall receive fair and reasonable compensation in maintaining continuity of service to all subscribers. (Ord. 832, 3-11-81)

27.03.54: REPORTS:

No later than April 15 of each year, the grantee shall present a written report to the grantor which shall include:

A. A certified financial report for the previous calendar year, including gross revenues from all sources, gross subscriber revenues from each category of service, net income and end-of-year balance sheet.

B. A summary of the previous year's activities including, but not limited to, subscriber totals and new services.

C. A summary of complaints received and handled.

D. Projected plans for the future. (Ord. 832, 3-11-81)

27.03.55: MAINTENANCE AND COMPLAINTS:

A. The grantee shall maintain an office in a geographical location approved by the City Council, which office shall be open during all usual business hours and have a publicly-listed toll-free telephone to accept subscriber complaints. A written log shall be maintained listing all complaints and their dispositions.

B. The grantee shall render efficient service, make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system. A written log shall be maintained for all service interruptions.

C. The grantee shall maintain a repair force of technicians capable of responding to subscriber complaints or requests for service within twenty four (24) hours or such other reasonable time period as determined by the City Manager, after receipt of a written complaint, except in the case of natural disaster, in which case the grantee shall use its best efforts. No charge shall be made to the subscriber for this service.

D. The grantor shall ensure that all subscribers, programmers and members of the general public have recourse to a satisfactory hearing of any complaint to the satisfaction of the person initiating the complaint. The grantor shall establish procedures for handling and settling complaints.

E. A subscriber whose complaints have not been satisfied shall have the right to file a compliant in writing with the grantor.

F. If a subscriber files, in writing, with the grantor a complaint for a service problem which is preventable and reasonably within the grantee's control, as determined by the City Manager, and if grantee fails, within twenty four (24) hours or such other reasonable time period as determined by the City Manager, following receipt of written notice by the grantor, to remedy the problem, the City Manager may levy a fine of up to one hundred dollars ($100.00) for any occurrence or series of related occurrences. Such fines may be collected by the City from the security fund as provided for in Section 27.03.19 of this Article.

G. In the event that a grantee's rates and charges and rate structure are deregulated pursuant to Federal or State legislation or court or City Council action, if a subscriber files, in writing, with the grantor a complaint for a service problem which is preventable and reasonable within the grantee's control, as determined by the City Manager, and if such grantee fails, within twenty four (24) hours or such other reasonable time period as determined by the City Manager, following receipt of written notice by the grantor to remedy the problem, the City Manager may levy a fine of up to five hundred dollars ($500.00) for any occurrence or series of related occurrences. Such fines may be collected by the City from the security fund provided for in Section 27.03.19 of this Article. (Ord. 832, 3-11-81)

27.03.56: RIGHTS RESERVED TO THE GRANTEE:

Should the grantee become dissatisfied with any material decision or ruling of the City Manager or staff pertaining to cable communication matters, the grantee may appeal the matter to the City Council. The Council may accept, reject or modify the decision of its City Manager or staff. If the grantee is dissatisfied with the results of such appeal, the grantee may pursue such other remedies as are available, including the bringing of action in any court of competent jurisdiction, provided there shall be a presumption of validity, fairness and reasonable determination on the part of the City Council. The decisions of the City Council shall not be subject to review under section 1094.5 of the Code of Civil Procedure. (Ord. 832, 3-11-81)

27.03.57: RIGHTS OF INDIVIDUALS PROTECTED:

A. Discriminatory Practices Prohibited: The grantee shall not deny service, deny access or otherwise discriminate against subscribers, programmers or general citizens on the basis of race, color, religion, national origin, sex, age, ancestry, political or religious opinions or affiliations, marital status or handicap. The grantee shall strictly adhere to the equal employment opportunity requirements of the Federal government, as expressed in sections 76.13(a)(8) and 76.311 of chapter 1 of title 47 of the Code of Federal Regulations. The grantee shall comply at all times with all other applicable Federal, State or City laws and all executive and administrative orders relating to nondiscrimination.

B. Subliminal Transmission Prohibited: No subliminal transmission shall be utilized at any time, for any purposes whatsoever.

C. Privacy and Other Human Rights: The grantee and the grantor shall maintain constant vigilance with regard to possible abuses of the right of privacy or other human rights of any subscriber, programmer or general citizen resulting from any device or signal associated with the cable television system. The grantee shall not place in any private residence any equipment capable of two-way communications without the prior written consent of the residents and will not utilize the two-way communications capability of the system for unauthorized subscriber surveillance of any kind.

D. Permission of Property Owner Required: No cable, line, wire, amplifier, converter or other piece of equipment owned by the grantee shall be installed by the grantee without first securing the written permission of the owner of any property involved, except for utility easements and utility rights of way. If such permission is later revoked, whether by the original or a subsequent owner, the grantee shall remove forthwith any of its equipment which is both visible and movable and promptly restore the property to its original condition.

E. Sale of Subscriber Lists Prohibited: The grantee shall not sell or otherwise make available lists of the names or addresses of its subscribers or any lists which identify by name, subscribers' viewing habits, to any person, agency or entity for any purpose whatsoever, without the specific authorization of the grantor, expressed by resolution, after a public hearing which shall be announced by written notice published in a newspaper of general circulation at least ten (10) consecutive days before the date of the hearing. Said notice shall also be included in the billings sent by grantee, at its own cost, to all subscribers in the City at least thirty (30) days prior to the date of the hearing. This prohibition shall specifically extend to all corporate subsidiaries, branches or offices of the grantee or of corporations of which grantee is a part. (Ord. 832, 3-11-81)

27.03.58: FEDERAL REGULATIONS:

Any lawful modifications resulting from amendment of section 76.31 (Franchise Standards) of the Rules and Regulations of the Federal Communications Commission are hereby incorporated into this franchise as of the date such modifications become obligatory under FCC regulations or, in the event no obligatory date is established, within one year of FCC adoption or at the time of franchise renewal, whichever occurs first. (Ord. 832, 3-11-81)

27.03.59: FRANCHISE RESOLUTION:

The franchise shall be evidenced by an executed franchise resolution between the City and the grantee. The franchise resolution shall incorporate the terms of this Article and the grantee's franchise application as modified and supplemented. Any conflict between the two (2) shall be specifically resolved in the franchise resolution; otherwise, this Article shall prevail. (Ord. 832, 3-11-81)

27.03.60: SEPARABILITY AND SEVERABILITY:

If any material section of this Article or the franchise resolution, as determined by the City Council, is held to be invalid or preempted by Federal or State regulations or laws, the grantor shall have the option to terminate or modify this Article or the franchise resolution. If any of the provisions of this Article or the application thereof to any person or circumstances is held invalid by a competent judicial agency, such invalidity shall not affect other provisions or applications of this Article which can be given effect without the invalid provision or application. To this end, the provisions of this Article are declared severable at that time. The invalidity of any portion of this Article shall not abate, reduce or otherwise affect any consideration or other obligation required of the grantee of any franchise granted hereunder. (Ord. 832, 3-11-81)

27.03.61: DECISIONS BY CITY:

Any franchise resolution entered into pursuant to this Article shall be deemed to include a provision and understanding that any decision made by the City under this Article or under said franchise, unless specifically indicated to the contrary, shall be reviewable only under Code of Civil Procedure section 1085 and not under Code of Civil Procedure section 1094.5, and the acceptance of the franchise shall constitute a waiver of Code of Civil Procedure section 1094.5 review. (Ord. 832, 3-11-81)

27.03.62: EFFECTIVE DATE OF CHANGES: